Appraisers Landmark $36M Settlement with BofA
Editor’s Note: Besides being a bit of good news, this ruling could have implications for all appraisers working for AMCs.
Appraisers Landmark $36 million Settlement with Bank of America for Failure to Pay Overtime
Settlement Covers 365 Plaintiffs Who Served as Residential Real Estate Appraisers
Oakland, CA – Today, employment and civil rights attorney Bryan Schwartz announced a settlement between Landsafe Appraisal Services, Inc., a subsidiary of Bank of America (NYSE: BAC) and 365 current and former employees working as residential real estate staff appraisers. The plaintiffs had sought damages for their misclassification as exempt from overtime, which left them working long hours, day in and day out, without additional compensation. Plaintiffs are seeking preliminary court approval in September 2015.
The lawsuit was first filed in April 2013 in federal court in Orange County. It alleged that Bank of America erroneously applied the “administrative” and “professional” exemptions to residential staff appraisers. Plaintiffs maintained that they typically worked from early in the morning until late at night, churning out reports that are a required part of every mortgage loan. The job required no special academic degree – just a state license. One of the named plaintiffs, Ethel Joann Parks of Manteca, California worked for Bank of America’s Landsafe until 2012. For years, she regularly toiled from 6 a.m. to 10 p.m. completing appraisal reports and, in the process, missing out on daily life and major family events. Rarely did she have time throughout the day to take a break to eat or rest because the artificially short deadlines set by Bank of America forced her to constantly keep working.
Ms. Parks decided to step forward because she felt that the bank failed to treat her, and other staff appraisers, “as human beings” with “family and personal needs that should be acknowledged.” She added, “I am vindicated by this lawsuit and the exceptional relief obtained on behalf of the class. I hope it will force banks and appraisal management companies throughout the country to reconsider pressuring their staff appraisers to work long hours without paying overtime.”
“We have seen over and over again across the economy that employees are misclassified, depriving them of overtime compensation, when under state and federal law they are due the wages,” said Bryan Schwartz, founder of Bryan Schwartz Law, lead counsel for the 365 class members, along with the Los Angeles-based firm of Schonbrun Desimone Seplow Harris & Hoffman. “These individuals worked hard, generated thousands of reports a month for the employer to sell mortgages, and were not compensated for their efforts as the law requires. We hope this settlement helps change the playing field for these and many other employees nationwide,” Attorney Bryan Schwartz added.
Judge David O. Carter certified a nationwide class action in December 2013 under the federal Fair Labor Standards Act, and certified a class action in California in June 2014 under the California Labor Code (See Court Certifies Class and Approves Nationwide Class Settlement for Review Appraisers). In May 2015, the Court granted plaintiffs summary judgment as to the major defenses Bank of America was asserting, and rejected the bank’s effort to kick the suit out of court. This resulted in a ruling under which Bank of America would likely owe the workers considerable back wages for overtime and missed meal and rest periods (See Appraisers Entitled to Overtime, Court Holds). The bank asked the Court for permission to appeal the summary judgment decision immediately, denying any wrongdoing. The case was set to go to trial on August 31, but the $36 million settlement, if and when approved by the Court, resolves all claims.
For Attorney Schwartz, this is just one of many recent out-of-court settlements in service of employees who were denied lawful compensation for their efforts. In 2014, Schwartz and his co-counsel settled another part of the same case against Bank of America (as to review appraisers) for $5.8 million. This makes nearly $42 million for workers in the suit as a whole. Schwartz has also achieved numerous other multi-million dollar settlements on behalf of thousands of misclassified workers nationwide.
“Employers take grave risks by cutting corners, and not fairly compensating their employees in tune with state and federal law. My firm and many others, including my co-counsel, are working to end wage theft in the economy…quickly,” added Schwartz.
The Plaintiffs are seeking the Court’s preliminary approval of the settlement in September, and hope to have the Court’s final sign-off so class members will receive their payments within the next several months.
The case is Terry P. Boyd et al. v. Bank of America Corp. et al., case number 8:13-cv-00561, in the U.S. District Court for the Central District of California.
Upcoming Webinar
How and Why of Your Appraisals: How to Create a Proper Reconciliation
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Date: September 10th, 10:00 – 11:30 a.m. PST
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Republished from Working RE Online.
About the Author
Bryan Schwartz (BryanSchwartzLaw.com) is a leading California attorney representing workers in wage, discrimination, and whistleblower claims. In recent years, he has represented residential and commercial appraisers in multiple, nationwide class action lawsuits against their employers. For more information about this case, please contact Bryan Schwartz: b…@BryanSchwartzLaw.com
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California is on a roll this week! Charlie Sheen would be proud of his home state.
WINNING!
I think anyone at similar companies; especially the so called “reconciliation ” companies that require 8 AM to 10 PM, 6 days a week should also be contacting these folks directly. I understand there re restrictions where they may not be able to ASK people to “come on down and sue”, but I cant imagine them not being able to respond to individuals who believe they have suffered similar abuse. Im thinking of one “reconciliation company” that was owned by a large title company, and located in Orange County last time I heard about them.
Contrary to popular belief, review appraisers are people too; and should be treated fairly. Perhaps if they didn’t have such unreasonable expectations foisted on them, WE would see fewer ridiculous reviewer issues.
When is the last time a lender client and or AMC called you to ask your opinion on how new regulations are going to effect your business (appraising)? With in essence non negotiable appraisal fees set to take place with TRID implementation, have they offered a solution to address complexity fees discovered after the appraisal fee has been locked in? Are they offering to raise the fees to offset the times complexity fees can’t be charged? Has anyone been contacted from a lender saying they are raising FHA appraisal fees based on the new regulations? The answer is of course NO. As it relates to BOA and Landsafe, when they pay a split fee for production and a higher percentage for the more work you do, are they asking how many hours it takes to make this happen? Does it matter to them that they pay you as an employee (staff appraiser) but to produce to a high standard of work you may work 12 hour days to make it happen? With the average settlement to each staff appraiser estimated to be $64,000, BOA will NOW say it matters. Good news to CA appraisers as the state has a longer statute of limitations, thus the portion of the payout will be higher than most states.
TURD (or TRID), should not be as bad on fees as I feared, though the jury is still out on that one. I too am concerned that it will produce de facto price fixing across the country.
I am about 80% of the way through a fairly comprehensive (possible) suggestion on how to establish a MINIMUM National “Reasonable” fee in all states that takes into account local cost differences.
I calculated everything nearer the lower end of overhead and benefit ranges so I could be an easy 5% low, on some basic assignments, but I think all will pretty much agree with FHA & Condo fees. Income Property fees probably need to come down-tough I am envisioning real income analysis instead of the silliness that passes for income property appraisals today under FNMA-maybe a two tiered range for 2 to 4s.
Hope to have it posted by end of week. Needs some clean up and double checking right now. IF we can get a consensus here, then I’ll have it put on the AGA web and reach out to each of the State Coalitions; and possibly to the various appraiser professional peer groups & organizations. It WONT be perfect but IF we can get a general consensus, then it IS possible we can get it adopted; and SOON!.
Update. My original appraiser trainer who has been a staff appraiser with Landsafe since 2008, just received an update as to the minimum settlement they will receive. As a high volume producer in the state of CA the minimum payment amount will be $139,000 and could be much higher depending on lawyer costs. Where is the respect when it comes to treating the staff and independent appraisers fairly?
Well, I’ve seen a few TURD quotes and its as bad as anyone thought. Essentially a $50 across the board hike in the fee paid by bank to AMC (about $550). On a good day, appraisers MAY get $400 of that, though AMCs will likely still try to capture low fee bidders at around $350.
In my state, the Official Bureau of Real Estate Appraisers website merely refers anyone inquiring about C&R fees back to the CFPB because in their words
“Customary and Reasonable Fees
BREA has no legal authority to enforce provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 related to Customary and Reasonable Compensation for Fee Appraisers. The Dodd-Frank Act established the Consumer Financial Protection Bureau (CFPB), and many of the pieces of the Dodd-Frank Act relating to the CFPB went into effect on July 21, 2011. For more information, please go to: http://www.consumerfinance.gov/.
Until such time as the CFPB’s enforcement authority is fully implemented, violations of Customary and Reasonable Compensation provisions should be reported to:
Board of Governors of the Federal Reserve System
Division of Consumer and Community Affairs
(202) 452-2412″
So the roughly 10,000+ appraisers still surviving in California are essentially on their own when it comes to enforcing C&R. We regulated AMCs but neglected to include meaningful provisions about C&R fees. Our ONLY recourse is via CFPB.
Anyone still think we do not need a default MINIMUM C&R fee schedule? How many other states are among the +-33 states that have some form of AMC regulations but do NOT have enforcement mechanisms?
I’ve reposted what I think the most probable solution is. Adoption of the fees proposed at the following link as default C&R in all states where no other common metric exists; where the studies are outdated (over three years old), or are in dispute. http://mfford.com/html/c___r_fees.htm
I was working as a real estate appraiser for BofA at the time of this lawsuit, and I had been working there for several years prior. This lawsuit was a travesty and a disservice to all appraisers, I refused to join as a plaintiff and to this day think the outcome was ridiculous. Due to this lawsuit appraisers across the county, which are an independent group who choose their own work schedules, became clock punchers over night. The lawsuit claimed real estate appraisers were not “professionals”. Every single appraiser at the time was working on a commission basis, with a clear compensation contract renewed annually. I think this should have gone to trial and dismissed as the farce it was.