Current through Register Vol. 49, No. 9, September, 2024
Section
I
- General - Creation, Purpose and
Authority
1. The Arkansas
General Assembly created, by passage of HB1694, an act to provide for
registration and regulation of appraisal management companies by amending
A.C.A. §
17-14-101 (The
Arkansas Appraiser Licensing & Certification Act). Act 628 of 2009
effectively added a subchapter 4 titled The Appraisal Management Company
Registration Act to the existing Appraiser Licensing & Certification Board
Statutes. The purpose and intent of this act is to give the Arkansas Appraiser
Licensing & Certification Board statutory authority to develop and
Implement rules resulting In the registration and government oversight of
individuals or companies offering to or providing appraisal management services
in Arkansas.
2. The Arkansas
Appraiser Licensing & Certification Board and Its staff have been charged
by statute the overall responsibilities of administering the act in accordance
with any and all officially promulgated rules. It is the legislative intent of
Act 628 to insure that no person (individual, company, or organization) shall
act as an appraisal management company or offer to perform appraisal management
services in this state unless registered by the Arkansas Appraiser Licensing
& Certification Board on or after January 1, 2010.
Section II
- General
Definitions
A. The
following words and terms when used in these rules will have the following
meanings:
1.
"Act 628" - the
Arkansas Appraisal Management Company Registration Act of 2009 which amended
Arkansas Statute A.C.A. §
17-14-101 et
seq. by adding a Subchapter 4.
2.
"Assignment" - means:
a. An
agreement between an appraiser and a client to perform a valuation
service;
b. The valuation service
that Is provided as a consequence of such an agreement.
3.
"Audit" or "auditing"
- means a formal or official examination and verification of the
accounts, correspondence, memoranda, papers, books, and other records of an
appraisal management company for compliance with A.C.A. §
17-14-401
et seq. through A.C.A. §
17-14-414 et
seq.
4.
"Competency"
or "Competent" - refers to the Competency Rule as defined In the
Uniform Standards of Professional Appraisal Practice (USPAP).
5.
"Complaint" - means any
written document alleging a deficiency on the part of the appraiser or
appraisal management company in the completion of an assignment for real
property In Arkansas.
6.
"Owner" - means an Individual owning more than ten percent (10%)
of an appraisal management company.
7.
''Registrant" - means an
appraisal management company or person that Is registered under this
subchapter.
8.
"Subject
Individual" - means:
a. A person
designated as the controlling person or managing principal as defined In A.C.A.
§
17-14-402(11);
b. An Individual with an ownership Interest
often (10) percent or more of an appraisal management company; or
c. In cases where ownership Interest of ten
(10) percent or more of the appraisal management company Is held by an entity
other than an Individual:
i. An Individual
who wholly owns a corporation that owns ten (10) percent or more of an
appraisal management company;
ii.
An Individual wholly owning and serving as the only general partner in a
limited partnership that owns ten (10) percent or more of an appraisal
management company;
iii. An
Individual wholly owning and managing a limited liability company that owns ten
(10) percent or more of an appraisal management company; or
iv. An Individual who wholly owns any other
type of business entity that owns ten (10) percent or more of an appraisal
management company.
9.
"System" - means an organized
or established procedure or method.
Section III
- Registration
of appraisal management companies required
A person shall not act as an appraisal management company or
perform appraisal management services In Arkansas unless they are registered by
the Arkansas Appraiser Licensing and Certification Board.
Section
V
(A)
-
Appraisal Management Company National Registry fees
A. An appraisal management company shall
annually submit to the Board on February 28 an annual appraisal management
company national registry fee that is determined by the Appraisal Subcommittee
on a form provided by the Board.
B.
The fee will be based on the number of appraisers who have performed an
appraisal for the appraisal management company on a covered transaction In
Arkansas during January 1 to December 31 of the previous year. The calculations
are as follows.
1. If the appraisal management
company has been existence for more than a year, twenty-five dollars ($25)
multiplied by the number of appraisers who have performed an appraisal for the
appraisal management company on a covered transaction In Arkansas during the
previous year; and
2. If the
appraisal management company has not been in existence for more than a year,
twenty-five dollars ($25) multiplied by the number of appraisers who have
performed an appraisal for the appraisal management company on a covered
transaction in Arkansas since the appraisal management company commenced doing
business.
C. The fee
will also apply to appraisal management companies that are subsidiaries of
Federal Financial Institutions that are exempt from state regulation but are
subject to the national registry fees.
D. If the report and fees are not paid by
February 28 of each calendar year, the appraisal management company will be
placed on inactive status on the Appraisal Management Company National
Registry.
E. A late fee of fifty
dollars ($50) must be paid for each month or partial month the form and
appraisal management company national registry fees are delinquent.
F. The Appraisal Management Company national
registry fees collected will be remitted to the Appraisal Subcommittee as
invoiced.
(B)
-
FeesA. The initial application fee for
each appraisal management company shall not exceed one thousand five hundred
dollars ($1,500).
B. The renewal
application fee for each appraisal management company shall not exceed one
thousand five hundred dollars ($1,500).
C. Late fees are assessed at fifty dollars
($50) per month or partial month from the appraisal management company's
expiration date or when the appraisal management company national registry fees
are delinquent.
D. A criminal
history report fee not to exceed fifty dollars ($50) must be paid by the
appraisal management company for each person owning more than ten (10%) percent
of the appraisal management company. The amount to be paid Is Included on the
criminal history report authorization form.
E. The Appraisal Management Company National
Registry Fee of twenty-five dollars ($25) Is calculated according to Section V
(A) (B) (1) and (2) of these rules.
Section VI
- Reqistrant
responsibilities-and duties
A. The registrant shall comply with the
responsibilities and duties outlined in A.C.A. §
17-14-407
et seq.
B. The registrant shall
disclose to an appraiser within their engagement documents verification of
their appraisal management company Arkansas Registration.
C. An appraisal management company must
submit to the Board a notice of business name change within thirty (30)
calendar days of the change. Such notification shall be in writing on a form
prescribed by the Board along with the following:
1. A corrected surety bond.
2. A copy of the Arkansas Secretary of State
business registration with the company's new name.
D. An appraisal management company with a
change of individual ownership greater than fifty (50) percent interest in the
appraisal management company, shall submit to the Board a notice of change of
ownership. Such notification shall be in writing on a form prescribed the by
the Board, along with the following:
1. A
completed surety bond.
2. A copy of
the Arkansas Secretary of State business registration showing a change of
registered agent;
3. A completed
background check authorization form for the new owner.
E. If the surety bond maintained by an
appraisal management company Is terminated or cancelled, the appraisal
management company shall file a replacement surety bond as soon as practicable
or within ten (10) calendar days of the cancellation or termination, whichever
occurs sooner. An appraisal management company that does not file a replacement
surety bond shall surrender the appraisal management company's registration and
cease operating as an appraisal management company effective on the date of
cancellation of the surety bond.
F.
Every subject individual and employee of an appraisal management company must
cooperate with the Board and must respond fully and truthfully to Board
inquiries and comply with any requests from the Board, subject only to the
exercise of any applicable right or privilege. Failure to cooperate with the
Board is unethical and is grounds for discipline including revocation or
suspension of a registration, imposition of a civil penalty, or denial of a
registration, or any combination thereof.
Section VII
- Disciplinary
authority, enforcement and hearings
A. In addition to the registering of
appraisal management companies, the Board has been granted authority to
consider and prosecute complaints against registrants for practices that are
alleged to be in violation of Arkansas state law and/or these rules.
B. A violation of the prohibited activities
outlined In A.C.A. §
17-14-408
et seq. are grounds on which the Board may file its own complaint against the
appraisal management company or on which any party may make a written
complaint.
C. The Board will accept
anonymous complaints.
D. The Board
may deny, suspend, revoke, or refuse to Issue a renewal registration of an
appraisal management company or may restrict or limit the activities of said
company or a person who owns an interest in or participates in the business of
the appraisal management company If the Board finds that any of the following
circumstances apply to the applicant, owner, registrant, a partner, a member, a
manager or officer, director, managing principal, controlling person, or
persons occupying a similar status or performing similar functions or a person
directly or indirectly controlling the registrant.
1. The application for registration is found
to contain statements that in light of the circumstances under which it was
made Is false or misleading with respect to a material fact.
2. The registrant has violated or failed to
comply with these Rules and Arkansas Statutes.
3. The appraisal management company's
controlling person or managing principal or other subject individuals has
pleaded guilty or nolo contendere to or been found guilty of:
a.
An offense listed In A.C.A.
§
17-3-102(a) or (e): or
b. Within the past five (5) years:
i. a misdemeanor involving mortgage lending
or real estate appraising; or
ii.
an offense involving breach of trust or fraudulent or dishonest
dealing.
4.
The registrant is permanently or temporarily enjoined by a court of competent
jurisdiction from engaging in or continuing to conduct any practice involving
appraisal management services or operating an appraisal management
company.
5. The registrant is the
subject of an order by the Board or appraisal management company regulatory
agency denying, suspending, or revoking the registrant's privilege to operate
as an appraisal management company In that jurisdiction.
6. The applicant/reglstrant acted as an
appraisal management company while not properly registered by this
Board.
7. The appllcant/registrant
failed to pay the proper filing or renewal fees at the appropriate
time.
E. Upon receipt of
a written complaint or Its own motion the Board shall proceed in processing a
complaint as follows.
1. First, establish that
the issue raised in the complaint is within the Board's jurisdiction.
2. A written notice and a copy of the
complaint shall be provided to the registrant advising of the allegations and a
request made of the respondent to submit a response within twenty (20)
days.
3. Upon timely receipt of the
registrant's response or a lack thereof, an investigation is initiated and a
report is subsequently provided to a Probable Cause Panel consisting of three
(3) Board members who will determine If the complaint should be dismissed,
resolved at the level of an informal conference or warrants a full Board
(Administrative) hearing. The recommendation of the Probable Cause Panel shall
be ratified by the Board before any further action Is taken.
F. Subsequent to ratification of a
Probable Cause Panel recommendation by the Board, the respondent is advised of
the status of the complaint and the direction in which it Is being
processed.
G. Upon the Board's
recommendation that a complaint be referred for a full Board (Administrative)
Hearing, It shall proceed as prescribed under the "Arkansas Administrative
Procedures Act" (A.C.A. §
25-15-201 et
seq.) and the Board may suspend or revoke the registration of an appraisal
management company; or impose a fine not to exceed $1,000 per violation; or
take any other appropriate disciplinary action as determined appropriate by the
Board.
1. Prior to the Board imposing any
penalty to the registrant, the Board shall first notify the registrant In
writing (via an Order and Notice of Hearing) at least twenty (20) days prior to
any hearing on the charges and allegations made.
2. The Board shall afford the registrant an
opportunity to be heard in person or by counsel.
3. Upon the Board making a Findings of Fact,
Conclusions of Law, and Order, the Order shall be delivered by certified mail
to the registrant.
4. Pursuant to
the Administrative Procedures Act §
25-15-208(b),
the Board has the option of resolving company complaints against an appraisal
management company without a formal hearing If deemed appropriate by an action
of the Board and consented to by the responding appraisal management
company.
Section
VIII
- Background Check
Any owner of an appraisal management company shall submit to a
state criminal background check and a national fingerprint-based criminal
background check performed by the Federal Bureau of Investigation. Each owner
shall apply for state and national fingerprint-based criminal background
checks, using forms furnished by and pursuant to instructions provided by the
Board.
Each owner shall authorize the release of criminal background
check reports to the Board and pay any applicable fees associated with the
state and federal criminal background checks pursuant to the written
Instructions provided by the Board.
Application Procedure
All personnel for the Arkansas Appraiser Licensing and
Certification Board (Board) will be trained and authorized to have access to
each owner's criminal history report.
When an owner applies for his or her background check, and the
Board receives the appropriate application form and required fees the Board
Staff will provide the owner with instructions to obtain his or her background
check.
1. If the owner does not have a
criminal history, agency personnel will issue the registration when all other
requirements are fulfilled.
2. If
the owner's criminal history report contains a disqualifying conviction(s), the
appraisal management company's application or renewal will not be approved. A
letter indicating there is a disqualifying conviction will be sent to the owner
by Restricted and Certified mall with the owner as the only Individual who may
sign for the receipt of the letter at the United States Postal
Service.
3. It is the policy of the
Board not to provide a copy of the FBI criminal history record to the owner.
The owner may obtain a copy of the record by submitting fingerprints and a fee
to the FBI. Information regarding this process may be obtained on the FBI's
website.
4. If, after viewing
his/her criminal Identification record, he/she believes that It is Incorrect or
incomplete in any respect and wish changes, corrections, or updating of the
alleged deficiency he/she should make application directly to the agency which
contributed the questloned/deficient information. He/she may also direct
his/her challenge as to the accuracy or completeness of any entry on his/her
record to the FBI, Criminal Justice Information Service (C3IS) Division, and
Attn: SCU, Mod. D2, 1000 Custer Hollow Road, Clarksburg, WV 26306. The FBI will
then forward the challenge to the agency which submitted the data, requesting
that agency to verify or correct the questloned/deficient entry. Upon the
receipt of an official communication directly from the agency which contributed
the original Information, the FBI C3IS Division will make any changes necessary
in accordance with the Information supplied by that agency.
5. Should an owner challenge his/her criminal
Identification record, he/she shall notify the Board in writing. After receipt
of such notice, the Board shall not determine whether an owner is qualified
until the owner has had a reasonable opportunity to challenge said criminal
identification record and shall not process the application until the challenge
of said record is resolved by the State Identification Bureau and/or Arkansas
Crime Information Center. The owner shall notify the Identification Bureau to
forward to the Board changes In the owner's record as a result of such
challenge.
6. If an applicant with
a disqualifying conviction chooses to appeal the decision to deny his/her
application, he/she may appeal to the Board for a waiver to be credentialed.
The applicant has (30) thirty calendar days from the date notification is
received from the AALCB in which to appeal the decision.
7. Each applicant with a disqualifying
conviction who requests a waiver may appear before the AALCB or may choose to
allow the Board to make a determination on the request for a waiver based on
the file documentation obtained by the Board and that submitted by the
applicant.
8. If an Individual has
been convicted of an offense listed in has been convicted of an offense listed
In A.C.A. §
17-3-102(a) or (e), the Board may waive disqualification of a
potential applicant or revocation of a registration based on the conviction If
a request for a waiver is made by:
1. An
affected applicant for registration; or
2. An individual holding a registration
subject to revocation.
9. The Board may grant a waiver upon
consideration of the following, without limitation:
1. The age at which the offense was
committed;
2. The circumstances
surrounding the offense;
3. The
length of time since the offense was committed;
4. Subsequent work history since the offense
was committed;
5. Employment
references since the offense was committed;
6. Character references since the offense was
committed;
7. Relevance of the
offense to the registration; and
8.
Other evidence demonstrating that registration of the applicant does not pose a
threat to the health or safety of the public.
10. A request for a waiver, if made by an
applicant, must be in writing.
11.
The Board will respond with a decision in writing and will state the reasons
for the decision.
12. An appeal of
a determination under this section will be subject to the Administrative
Procedures Act §
25-15-201
et seq.
13. The
criminal history Information, along with all supporting documentation, will be
destroyed after (7) seven years by having authorized agency personnel
cross-shred all Information including the file folder. This time limit will be
confirmed with the State of Arkansas Records Retention policy In effect at the
time the documents are scheduled to be destroyed.
14. The exchange of the Criminal History
Report Information Is subject to cancellation if dissemination is made outside
the receiving departments or related agencies and If Criminal History Record
Information is used for any other reason that Is not stated in Arkansas State
law. Furthermore, depending upon the nature of the offense and the Identity of
the offender, federal or state crimes may be charged for the willful,
unauthorized disclosure of Criminal History Report Information. Misuse of the
Criminal History Report Information Is a Class A Misdemeanor or a Class D
Felony depending on the circumstances. ACA
12-12-212
and
12-12-1002(b)
and Title 28, U.S.C., § 534, Pub. L. 92-544, Title 28, CFR, 20.33 (d).
Misuse of the Criminal History Report Information may result In termination of
agency personnel Involved.
Pre-Licensure Criminal Background Check
A. Pursuant to Act 990 of 2019, an individual
may petition for a pre-registration determination of whether the individual's
criminal record will disqualify the Individual from registration and whether a
waiver may be obtained.
B. The
individual must obtain the pre-registration criminal background check petition
form from the Board.
C. The Board
will respond with a decision In writing to a completed petition within a
reasonable time.
D. The Boards
response will state the reason(s) for the decision.
E. All decisions of the Board in response to
the petition will be determined by the information provided by the
individual.
F. Any decision made by
the Board in response to a pre-registration criminal background check is not
subject to appeal.
G. The Board
will retain a copy of the petition and response and it will be reviewed during
the formal application process.
Section IX
-
Audits
A. An audit of an
appraisal management company registered to provide appraisal management
services In Arkansas may be conducted by the Board.
B. In the case of a subsidiary or affiliate
of a financial institution engaging in business as an appraisal management
company without obtaining a registration to provide appraisal management
services in Arkansas, the Board may conduct an audit of the appraisal
management company in a joint or alternating manner with the appropriate
federal banking agency or the Consumer Financial Protection Bureau as permitted
or requirement by applicable law.
C. The Board may audit an appraisal
management company at any time or times and may require the production of such
records at the office of the Board as often as necessary.
D. An appraisal management company that
refuses to submit to an audit shall be considered to have failed the audit.
Section X
- Injunctive Relief - Criminal Penalty
It is unlawful for an appraisal management company or a person
not registered under A.C.A. §
17-14-401
et seq. to perform any act for which registration is required. In order for the
Appraiser Licensing and Certification Board to fulfill Its legislated
responsibilities, it may appear In its own name before a Circuit Court of
competent jurisdiction to obtain injunctive relief to prevent a person from
violating any provision of this Act. The Circuit Court has the option of
granting a temporary or permanent Injunction regardless of whether any criminal
prosecution has been or may be Instituted as a result of the violation or the
Individual or company is a holder of a registration issued by the
Board.
Section XI
- Applicability
A. Act 628 of 2009 clearly sets forth the
following specific entities and conditions for which an appraisal management
company registration Is not required. These rules of registration shall not
apply to:
1. An agency of the federal, state,
county, or municipal government;
2.
A person authorized to engage in business as a bank, farm credit system,
savings institution, or credit union under the laws of the United States, the
State of Arkansas, or any other state;
3. A licensed real estate broker or licensed
real estate agent performing activities regulated by the Arkansas Real Estate
Commission unless the licensed real estate broker or licensed real estate agent
received compensation or other pecuniary gain in connection with the referral,
placement, or execution of a request for appraisal services; or
4. An officer or employee of a government
agency, person, licensed real estate broker, or licensed real estate agent
described in this section when acting within the scope of employment of the
officer or employee.
A violation of A.C.A. §
17-14-401
et seq. is a class D felony.