Here are the latest updates for wseward@seward-realestate.com
Perhaps you remember the headlines?
California Appraiser Sues WAMU, First American, eAppraiseIT, and LSI - Refused to check "Stable"
It was about Jeniffer Wertz, a California licensed real estate appraiser, who filed a 12 count lawsuit against Washington Mutual Bank, First American Corp., eAppraiseIT, Lenders Services (LSI), FNIS, Inc, and Susan Richter.
Appraisal Scoop has learned from Jeniffer Wertz that . . .
"The case has been settled to mutual satisfaction of the parties."
As is usually the case in these instances, that's about ALL that any of the parties can say. I'm guessing that the amount of settlement and the terms of the agreement will be sealed by the court. Still, I view this as victory for the "little guy" (or girl) and offer my kudos to Jeniffer for standing up for ALL of us!
I've abstrated and edited portions of the original lawsuit for ease of reading on this blog. The complete, un-edited document, can be downloaded here: Download WertzPrimarySuit.pdf
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Author: Brian J. Davis - Brian Davis & Associates - Brian has over 24 years of appraisal experience in Central, IL and hosts the Appraisal Scoop blog and the WinTOTAL Users Group an email forum for appraisers
I assume that many of you remember the lawsuit that was filed as a class action against FNC last summer? The judge has been considering the request of FNC to allow the parties to go into arbitration since December of 2007.
In summary from Judge Roger W. Titus: "The crux of Plaintiffs’ claims is that FNC induced them to convey their business proprietary appraisal information via AppraisalPort to their client mortgage lenders through false representations that such information would be transmitted securely and would not be viewed, intercepted, or stored by anyone—not even AppraisalPort—except the sending appraiser and the receiving client mortgage lender.
In contrast to these representations,
"Plaintiffs allege, FNC has acquired and compiled this proprietary appraisal data into a “National Collateral Database,” where it may be accessed by subscribing lenders and other market participants."
Today a little bird delivered to me a 25 page memorandum written on August 28, 2008 . .
The Judge, in a 25 page Memorandum, has denied their request and has decided to allow the plaintiffs to go into the next phase of the legal battle.
MUST READ! Download Titus_Opinion_of_Motion.pdf
I would love to write some great lines to enrapture the minds of you, the readers of my articles, but in this case I will let Roger W. Titus, United States District Judge tell his opinion of the matter at hand:
“In the end, it is important to keep in mind that FNC drafted the user agreements for AppraisalPort with its own pen (or keyboard, more likely) so as to give it, and it alone, the power to modify its terms. Although one might normally consider this a blessing, it can also be a curse. "While FNC was free to lay down the rules to govern its relationship with its users, it also took the risk that in doing so it would live to regret such rules when future circumstances proved them disadvantageous. The voluntary and knowing removal of the binding arbitration clause in the 2005Agreement is one such modification—or attempted modification—that FNC clearly grew to regret, but only after the filing of this case. Until this case, all actions by FNC indicated that it had wanted to effect the modification and believed it had done so successfully."
“In the end, it is important to keep in mind that FNC drafted the user agreements for AppraisalPort with its own pen (or keyboard, more likely) so as to give it, and it alone, the power to modify its terms. Although one might normally consider this a blessing, it can also be a curse.
"While FNC was free to lay down the rules to govern its relationship with its users, it also took the risk that in doing so it would live to regret such rules when future circumstances proved them disadvantageous. The voluntary and knowing removal of the binding arbitration clause in the 2005Agreement is one such modification—or attempted modification—that FNC clearly grew to regret, but only after the filing of this case. Until this case, all actions by FNC indicated that it had wanted to effect the modification and believed it had done so successfully."
Click here to continue reading . . .
"But what if FNC did not regret the 2005 Agreement and, because of some legal advantage it gave, instead sought to enforce it? Surely the Court would be hearing argument from FNC that the Arbitration Plaintiffs freely assented to the provisions giving FNC full power to modify their agreements unilaterally after posting them and that FNC complied with its obligations." "Again, the Court would be forced to parse ambiguous modification provisions, and again the Court would likely need to consider the equities inherent in the conduct of the parties."
"But what if FNC did not regret the 2005 Agreement and, because of some legal advantage it gave, instead sought to enforce it? Surely the Court would be hearing argument from FNC that the Arbitration Plaintiffs freely assented to the provisions giving FNC full power to modify their agreements unilaterally after posting them and that FNC complied with its obligations."
"Again, the Court would be forced to parse ambiguous modification provisions, and again the Court would likely need to consider the equities inherent in the conduct of the parties."
"In this manner, FNC’s actions are like a man standing with one foot on a dock and one foot on an untethered boat drifting away and unable to choose whether to stay on land or shove off to the sea. When this case was filed, FNC’s time to choose ran out and it ended up in the water. As FNC’s predicament is wholly of its own making, the Court will not now throw it a life preserver. "
"Accordingly, for the reasons stated above, the Court will enter an order denying the motion to compel”
I wonder what’s next. I am sure this will make for some interesting posts. Many of which have been some fascinating allegations that I am somehow the personal spokesperson for a la mode. I assure all of you that I am not, nor have I ever been a spokes person or endorser of a la mode. I am a paying customer of a la mode’s, and I work inside of the Labs project, but not as an employee.
The only vested interest that I have in this web portal battle is the same one that we all share in as appraisers. I want to see our industry be given the same credibility that CPAs and other similar industries get.
Click Here to Download Titus_Opinion_of_Motion.pdf
Author: Woody Fincham - http://www.fmava.com/ - Woody is one of the founders and managing appraiser for FM & Associates. He has recently become an instructor with a local real estate school, teaching broker pre-licensing and real estate agent pre-licensing. Woody is a Certified Residential Appraiser in Virginia, as well as North Carolina. Woody is also a Member of the a la mode labs project