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Lien on house for not paying house appraisal!?

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BL Hoff

Junior Member
Idaho

My wife and I could use some legal advise in our situation. We had opted to refinance our house to a 15year loan and the mortgage broker sent out an appraiser to appraise the house. I called to ask if we were responsible for the appraiser fee of $400 dollars or if the mortgage company would pay, but she never returned our phone calls. I decided to see if the mortgage refinance was worth it so I used a mortgage calculator to see how much we would save. I found out that if we paid the monthly amount on our current loan as the refinance monthly amount we would actually pay our house off a year earlier. We decided not to go through with the refinance and now the mortgage company wants us to pay the appraisal fee even though we did not agree verbally agree or sign any documents stating we had to. Now they are threating to put a lien on our house if we don't pay.

From our perspective, I don't see how they could put a lien on our house without any document signatures or verbal agreements. It looks as though they are going to try to go forward with the lien, so my wife and I are going to go to their company and try and talk to her supervisor.:mad:What is the name of your state (only U.S. law)?
 
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tranquility

Senior Member
Tough one as I bet they will have enough proof to place the lien. It will cost a lot more than $400 to fight the lien although if it is found to be unjustified they may have to pay your attorney fees depending on the state. I'd argue with everyone like crazy and try to get them to prove up their case. Keep good records. If a lien is placed, write back with what they said in justification.
 

Johnny O

Member
Did you allow them to go into your home to perform an appraisal? If so then they did the job with your consent.
 

tranquility

Senior Member
There are two questions here. The first is if the OP is liable for the debt and the second (if the first is answered in the affirmative) is can a lien be placed on the property for the debt.

The first is not an easy question. It would take more facts as the facts the OP has given make it seem he is not. I'm not even sure he can be charged with the value of the services even if he gave consent as he did not benefit from them. I'd like to see the contractual claim of the bank that the OP is responsible for the appraisal before really answering the question however.

The second is a little easier. I'm not an expert in liens and certainly know nothing about Idaho liens, but why is a lien even an appropriate remedy in this case? Can someone tell me? It doesn't seem a mechanics lien as there was not an improvement to the property, nor is the appraiser an engineer or archetict or other professional of a type who is usually allowed a lien for non-improvement-service-work. There might be another category, but can any of the quick answers point me to the section where a lien is an appropriate remedy in this situation?
 

Johnny O

Member
If the OP did not benefit from the work done its because at some point he chose not to comtinue with the procees. The procees was started by him, they did not pick his house randomly and went there to do work. I believe he is responsible up to the point he stopped the process. As far as an appraiser being a proffessional. They are licensed and certified by the state, and it is not a simple procees to become a Certified Appraiser.
Again if the OP allowed the work on his home, who is the obvious responsible party, to pay for the work done. He is also entitled to have the Appraisal Report that was done on his home.
 
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tranquility

Senior Member
If the OP did not benefit from the work done its because at some point he chose not to comtinue with the procees.
Exactly. The process, as you put it, does not make a contract unless the process was listed in a contract. I agree the OP may be responsible for the fee, but we need to find out why the bank/broker feels he had a contractual relationship to the point of sending out an appraiser first. If there was no contract, the recovery against the OP is in quantum meruit. Or, the value of the services and not their listed or contractual expense. How is this to be measured? A usual way is by the value of the (usually it's the building of a wall of some sort in all the case books) item to the person who did not stop the party when he saw him doing work he knew the party was going to be compensated for. It is a quasi-contractual remedy. That will be difficult to assess here when the OP may not have seen the appraiser, the appraiser was hired by another party and the value of the appraisal is suspect at best.

far as an appraiser being a proffessional. They are licensed and certified by the state, and it is not a simple procees to become a Certified Appraiser.
Fascinating. Now, could you address my point?
nor is the appraiser an engineer or archetict or other professional of a type who is usually allowed a lien for non-improvement-service-work.
Wait, let me spend a moment on google and see if I can answer it myself. Well, maybe not, but I was at least kinda right:
Idaho Statutes
TITLE 45
LIENS, MORTGAGES AND PLEDGES
CHAPTER 5
LIENS OF MECHANICS AND MATERIALMEN
45-501. RIGHT TO LIEN. Every person performing labor upon, or furnishing materials to be used in the construction, alteration or repair of any mining claim, building, wharf, bridge, ditch, dike, flume, tunnel, fence, machinery, railroad, wagon road, aqueduct to create hydraulic power, or any other structure, or who grades, fills in, levels, surfaces or otherwise improves any land, or who performs labor in any mine or mining claim, and every professional engineer or licensed surveyor under contract who prepares or furnishes designs, plans, plats, maps, specifications, drawings, surveys, estimates of cost, on-site observation or supervision, or who renders any other professional service whatsoever for which he is legally authorized to perform in connection with any land or building development or improvement, or to establish boundaries, has a lien upon the same for the work or labor done or professional services or materials furnished, whether done or furnished at the instance of the owner of the building or other improvement or his agent; and every contractor, subcontractor, architect, builder or any person having charge of any mining claim, or of the construction, alteration or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner for the purpose of this chapter: provided, that the lessee or lessees of any mining claim shall not be considered as the agent or agents of the owner under the provisions of this chapter.
For purposes of this chapter the term "furnishing material" shall also include, notwithstanding any other provision of law to the contrary, supplying, renting or leasing equipment, materials or fixtures as defined in section 28-12-309, Idaho Code....
 

ecmst12

Senior Member
I'm not seeing where the APPRAISER is the one threatening the lein anyway. The bank is making the threat. I believe if OP received the service (appraisal was performed) then he is probably liable for the cost. I thought in most cases a lein could not be placed without first getting a judgement, but I wasn't sure if it was different for mortgages since the bank technically owns the house.
 

tranquility

Senior Member
I believe if OP received the service (appraisal was performed) then he is probably liable for the cost.
Can I charge those who I write an answer to on this forum my usual and customary fees for any advice I might give?

Why not?
 

Zigner

Senior Member, Non-Attorney
Can I charge those who I write an answer to on this forum my usual and customary fees for any advice I might give?

Why not?
Absolutely! You can charge the usual and customary amount ANYONE charges on a FREE advice forum! :p
 

tranquility

Senior Member
I agree. But illustrates the problem and why we need to know what the broker feels the contract is with the OP and why he thinks the OP needs to pay for it. Just because someone receives a service does not mean he is liable for the cost. (On in the case here of much of the drivel I write, the value.) Also, in this case, I'd like to know if he did "receive" the service in a legal sense.

What was the deal? Did the broker jump the gun in the hope of locking in a client in a market where business is tough or did the OP act to slow in stopping something he already agreed to?
 

Sheriff10

Junior Member
I believe the remedy you are looking for would fall under the Truth in Lending Act Sections 226.15 & 226.23.

Paraphrasing, this legislation requires the lender to make you whole in the event you exercise your rights under the three day right of recission. They state the lender must refund fees paid by the borrower, even those passed through to third parties. This law is unfair to the lender, but is there nonetheless.

However, this does not legislate what is the right thing to do or the wrong thing to do. If you applied to the lender to refinance your mortgage, knowing they cannot do this for you without an appraisal, then you should pay for it. They proceeded in good faith. So should you.
 

TXPI

Junior Member
It seems to me that the employment of the appraiser was for the benefit of the lender, not the prospective borrower. The lender chose to hire the appraiser before securing a contract so they should eat it because of their poor business practices.

Two decades ago when I tried to refinance my 17% mortgage I had to sign a contract and pay $528 up front, which was not refunded when the re-fi was not approved because the 80% loan did not cover the appraised value, even though a family member offered to pay my balance down below the 80% level. This attempted re-fi was at the bank my mortgage was with, at their suggestion. (I scrimped, saved, and worked extra jobs and paid the house off in three years and have not borrowed a dime from anyone since.)
 

Sheriff10

Junior Member
You are correct in that the appraisal is for the sole purpose of allowing the lender to determine how much they can lend on a home. But if the prospective borrower goes to the lender with the intention of enticing the lender to loan them money on their home, they cannot expect the lender to foot the bill if the borrower changes their mind.

This is despite what is required of the lender under the TIL Act.

If I told you I wanted to buy your home, and you went to the expense of doing something that only I could benefit from, then changed my mind, would you expect me to reimburse you? Of course you would.
 

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