STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DIVISION OF FINANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1718

)

EVERS & ASSOCIATES, INC., ) DOVARD J. EVERS, PRESIDENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Charles C. Adams, Hearing Officer, Division of Administrative Hearings, at Suite 113, 103 Century 21 Drive, Jacksonville, Florida at 9:00 A.M., February 26, 1976.

APPEARANCES

For Petitioner: Fred O.Drake, III, Esquire

Office of the Comptroller The Capitol

Tallahassee, Florida 32304

For Respondent: Earl M. Barker, Esquire

218 East Forsyth Street Jacksonville, Florida 32202

ISSUE

Whether or not the Respondent, Evers & Associates, Inc. and Dovard J. Evers, its President, a licensed mortgage broker in the State of Florida, has charged and accepted fees and commissions in excess of the maximum allowable fees or commissions on the transactions set forth in the administrative complaint, Exhibit "A," in violation of Sec. 494.08(4), F.S., and thereby subjected the Respondent to a possible suspension under the terms of 494.05(1)(g), F.S.

FINDINGS OF FACT

1. Evers & Associates, Inc. through the parson of Dovard J. Evers, its President, was a licensed mortgage broker in the State of Florida, during the time period contemplated by the administrative complaint. Subsequent to the time of receiving the mortgage brokers-license, Dovard J. Evers, on behalf of Evers & Associates, Inc., entered into an agreement with several other parties to sell notes secured by mortgages on real estate.

   
   

2. One of the agreements was with David Edstrom, of a corporation known as S.E.T., Inc., Mr. Edstrom being the President of said corporation, and the

   location of that corporation being in Fort Lauderdale, Florida. A similar agreement was held with one Gary George of the Mortgage Consultants, Inc., Ocala, Florida. The agreement with Gary George involved a sale of mortgages for the benefit of the mortgagor, Washington Development Corporation. The third such agreement was with Phil Swan of Southeast Florida Corporation. The written conditions of the S.E.T., Inc. arrangement with Mr. Evers can be found in Respondent's Exhibits No. 2 through No. 5.

   
   

3. Essentially, the arrangement was to have Mr. Evers, through Evers & Associates, act as a salesman for the benefit of S.E.T., Gary George and Phil Swan. Their agreement envisioned that Mr. Evers would be afforded a percentage discount varying from 14 percent to 16 percent of the amount of a mortgage loan which was a note secured by real estate. In actual , the contact was made between S.E.T., Gary George and Phil Swam Mr. Evers for purposes of placing notes that were for sale. The apparatus worked by having Mr. Evers contact mortgagees/investors who made a check payable to Evers & Associates for the full amount of the mortgage loan, whose price had been quoted by the intermediary; S.E.T., Gary George and Phil Swan. This amount was held in escrow until such time as the note and mortgage which secured the note could be drawn. The executed note and mortgage went directly to the third party mortgagee/investor without ever having the name of Mr. Evers or Evers & Associates, Inc., affixed to such documents. After this note and mortgage had been executed in behalf of the third party investor, Mr. Evers deducted a fee in favor of Evers & Associates, Inc., according to the percentage agreement with S.E.T., Gary George and Phil Swan and sent the balance of the money to S.E.T., Inc.; Washington Development Corporation through the person of Gary George and to Phil Swan of the Southeast Florida Corporation. The arrangement with Washington Development Corporation changed at a later date because Gary George was no longer involved and payments subsequent to his involvement were sent directly to Washington Development Corporation.

   
   

4. The facts show that in the transactions found in Petitioner's Exhibit "A," the complaint, charges were made in behalf of Evers & Associates in the person of Mr. Evers which exceed the statutory allowance for fees and commissions in the amount stated in the column entitled overcharges. These overcharges are according to the percentage agreement between Mr. Evers and S.E.I., Inc., Gary George, and Phil Swan, minus adjustments made in behalf of the third party investor/mortgagee, as indicated in the testimony.

   
   

5. This finding of facts, excludes the mortgage by M. Berkell which was stipulated between the parties as not being a matter for further consideration in the hearing. There was no evidence offered of the charge, if any, between S.E.T., Inc., Gary George, and Phil Swan in their dealings with their developer/mortgagors. At present the Respondent, Evers & Associates, Inc., and Dovard J. Evers, its President, have failed to renew the license in the current license period and, as of the moment of the hearing, have expressed no further interest in such renewal.

   
   

   CONCLUSIONS OF LAW

   
   

6. It is concluded as a matter of law that the Respondent, Evers & Associates, Inc., by Dovard J. Evers, its President, a licensed mortgage broker, has charged fees and commissions in excess of amounts allowed under the formula set forth in Section 494.08 (4), F.S. and by such a violation are held to be suspended in accordance with Section 494.05(1)(g), F.S. The fact that the Respondent has acted salesman for S.E.T., Inc.; Gary George and Phil Swan does excuse the charge of excess fees or commissions; nor, does the fact that the

Respondent did not deal directly in all instances, with the mortgagor excuse the overcharge of fees or commissions. The amount of overcharge is reduced by the testimony offered in the course of the hearing which shows that the Respondent received an amount less than the normal percentage fee.

RECOMMENDATION

It is recommended that the license of Evers & Associates, Inc., by Dovard J Evers, its President, be suspended for a period not to exceed 30 days.

DONE and ENTERED this 8th day of June, 1976, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Fred O. Drake, III, Esquire Office of the Comptroller The Capitol

Tallahassee, Florida 32304

Earl M. Barker, Esquire

218 East Forsythp Street Jacksonville, Florida 32202

Docket for Case No: 75-001718

Orders for Case No: 75-001718