Cl·lllW FINANCIAL OFFICER JEFF ATWATER STATE OF FLOIUDA

F·ILED

MAR 3 1 2011

Docketed by.. SU ,

IN TIIE MATTER OF:

SURF TITLE, INC.

CASENO.: 114768-11-AG

ADMINISTRATIVE COMPLAINT

TO: SURF TITLE, INC,

2758 E. Atlantic Blvd.

Pompano Beach, Florida 33062-4942

SURF TITLE, INC.,

C/O Tim Vincent Milianta, Pres. 3318 NW 691h Court

Ft. Lauderdale, Florida 33309

SURF TITLE, INC. is hereby notified that the Chief Financial Officer of the State of Florida has caused to be made an investigation of its activities while licensed as a title insurance agency in this state, as a result of which it is alleged:

Qfil/ERAL ALLEGATIONS

I. SURF TITLE, INC. is currently licensed in this state a. a title insurnnce

agency.

1. At all times pertinent to the dates and occurrences referred to herein, SURF TITLE, INC. was licensed in this Rtate as a title insurance agency agent,

2. Pursuant to Chapter 626, Florida Statutes, the Florida Department of Financial Services has jurisdiction over Surf Title's insurance licenses and appointments.

   
   

3. At all times pertinent to thf.l dates and occurrences referred to herein, Tim Vincent Milianta, was an officer and director of S\.lrf Title, Tnc., an incorporated title insurance agency doing business in Broward County, Florida, and a licensed title insurance agent.

4. Pursuant to Section 626.8473(2), Florida Statutes, all funds received by a title insurance· agent shall be trust funds received in a fiduciary capacity by the title insurance a.gent and shall be the property of the person or persons entitled thereto.

COUNT ONE

· 6. The above General Allegations numbered one through five are hereby realleged and fully incorporated herein by reference.

1. On or about January 9, 2009, SURF TITLE, Inc. as a licensed title insurance agency, through Tim Vincent Milianta, closed a real estate mortgage refinancing transaction, that being loan number 525210, on behalf of Charlie Mae Wilder of Winter Garden, Florida as borrower.

2. Pursuant to instructions from the lender, Assurity Financial Services, Inc., and aij a condition of the funding of the loan, SURF TITLE, INC. was to payoff certain creditors of Charlie Mae Wilder at closing with funds held in escrow, utilizing part of the loan proceeds, and indicating such on the HUD-1 Settlement Statement.

3. SURF TITLE, INC., failed to payoff said creditors pursuant to the instructions from the lender. Rather, SURF TITLE, INC. wrongthlly diverted and disbursed approximately $29,928.00 of the escrowed loan proceeds to an unauthorized· third party, SEAL Credit. This diversion of the escrow funds was neither authorized by

the lender, Assurity Financial Services, Inc., nor the borrower, Charlie Mae Wilder, and was done without eithers' knowledge or informed consent.

JO. Pursuant to this above described scheme, SURF TITLE, INC., through

Tim Vincent Mi!ianta, prepared a false and fraudulent HUD-I statement reflecting that disbursements from the loan proceeds were made to SEAL Credit, ostensibly to pay off creditors as instructed by the lender. This diversion and disbursement of loan proceeds to SEAL Credit and the preparation of the false HUD- I statement was done without the knowledge or informed consent of either the lender or of Charlie Mae W.ilder. The false HUD-I statement was prepared solely to create the false inference or impression at the closing that the disbursement to SEAL Credit had, in fact, been tiuthorizc:d by the: lender in order to pay off creditors. The disbursement to SEAL Credit had never been authorized by the lender, and, in point of fact,· tho lender would not have: pcrmittc:d escrow fond disbursements to third parties. At the sume time, in furtherance of this scheme, SURF TITLE, INC., through Tim Vincent Milianta, prepared a second HUD-I statement, substituting it in the place: of the previously mentioned first HUD ! statement, and submitted it to the lender after closing, as it was required to do, to falsely reflect that the creditors had been paid off in full by SURF TITLE disbursing the loan proceeds pursutint to the lender's instructions.

1. In actuality, SEAL Credit failed to pay off any of Charlie Mae Wilder's creditors with the f\mda received from SURF TITLE, INC,, and Tim Vincent Milianta, pursuant to any instruction, but rather SEAL Credit misappropriated and retained the funds for its own U11e and benefit.

   
   

   
   

2. SEAL Credit is now .closed and the whereabouts of the loan proceeds is unknown. As a result of your unauthorized and wrongful diversion and disbursement of the funds, Charlie Mae Wilder has suffered financial harm.

   IT IS THEREFORE CHARGED that SURF TITLE, INC., have violated or are accountable under the following provisions of the Florida Insurance Code and rules of the Department of Financial Services which constitute grounds fo1· this suspension or revocation of your licenses and appointme.11ts:

   1. Section 626.8437(4), Florida Statutes which provides that it is a violation t6 demonstrate lack of fitness and trustworthiness to engage in the business of insurance;

   2. Sectiotf 626.8437(6), .Florida Statutes which provides that it is a

      
      

      . violation to utilize fraudule.nt or dish,1nest practices in the conduct of business under the license or appointment;

   3. Section 626.8437(9), Florida Statutes, whi.ch provides that it is a

      
      

      violation to willfully fail to comply with, or willfully violate, any proper order or rule of the Department or willfully violate any provision of this act;

   4. Section 626.844(2), Florida Statutes, which provides that it is a

      
      

      violation to wiJlfully violate any provision of this act 'in the course of dealing under the license or appointment;

   5. Section 626.844(5), Florida Statutes, which provides that is a violation to willfully engage in unfair methods of competition or in unfair deceptive acts or practices in the conduct of business, as prohibited under part IX of this chapter, or

      
      

      having otherwise shown himself or herself to be a source of injury or loss to the public or to be detrimental to the public interest;

   6. Section 626.9521(1), Florida Statutes, which provides that no

      
      

      person shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to Section 626.951 or Section 626.9561 to be, an unfair method of competition or an unfair or deceptive act or practice involving the business of insurance.

   7. Section 626.9541(1)(e) 1, Florida Statutes, which provides that it a violation to knowingly: file with any supervisory or other public official, make, publish, disseminate, or circulate; deliver to any person; place before the public; cause, directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false material statement;

   8. Rule 690-186.008, Florida Administrative Code, which provides that a title insurance agent or title insurer may not use, endanger, or encumber money held in tmst without the permission of the owner of such money, given after full disclosure of the circumstances.

      COUNTTWO

      
      

3. 'fhe above General Allegations numbered one through five are hereby realleged and fully incorporated herein by reference.

4. On or about September 18, 2008, SURF TITLE, INC., as a licensed title insurance agency, closed a real estate mortgage refinancing transaction, tlmt being loan number 739519298, on behalf of Arna and Rudolph Sauceda of Miami, Florida as borrower.

   
   

5. Pursuant to instructions from the lender, HSBC Mortgage, Inc., and as a condition of the funding of the loan, SURF TITLE, INC. was to payoff certain creditors of Mr. and Mrs. Sauceda at closing through escrow, utilizing part of the loan proceeds, and indicating such on the HUD- I Settlement Statement.

6. SURF TITLE, INC, and Tim Vincent Milianta, failed to payoff said creditors pursuant to the instructions from the lender. Rather, SURF TITLE, !NC., and Tim Vincent Milianta, wrongfully diverted and disbursed approximately $14,621.00 of the escrowed loan proceeds to an unauthorized third party, SEAL Credit. This diversion of the escrow funds was neither authorized by the lender, HSBC Mortgage, nor the borrower, Mr. and Mrs. Sauceda, and wa done without their knowledge or infonned consent.

7. In actuality, SEAL Credit failed to pay off any of Mr. and Mrs. Sauceda's creditors with the funds received from SURF TITLE, INC., pursuant to any inBtruction, but rather SEAL Credit misappropriated and retained the funds for its own use and benefit.

8. SEAL Credit is now closed and the whereabouts of the .loan proceeds is unknown. As a result of your unauthorized and wrongful diversion and disbursement of the funds, Mr. and Mrs. Sauceda have suffered financial harm.

IT IS THEREFORE CHARGED that SURI' TITLE, INC. have violated or are accountable under the following provisions of the Florida Insurance Code and rules of the Department of Financial Services which constitute grounds for this suspension or revocation of your licenses and appointments: Sections 626.8437(4)(6) and (9);

626.1144(2) and (5); 626.952l(1); 626.9541(1)(e)1, Florida Statutes and Rule 690- 186.008, Florida Administrative Code, as more particularly alleged in Count I above.

WHEREFORE, SURF TITLE., INC., is hereby notified that the Chief Financial Officer intends to enter an Order suspending or revoking the insurance licenses and appointments held by SURF TITLE, INC. or to impose such penalties as may be provided under the provisions of sections 626.611, 626.621, 626.681, 626.691, 626.692 and 626.9521, Florida Statutes and under the other referenced sections of the Florida Statutes as set out in this Complaint.

NOTICE OF RlGIITS

You have the right to request a proceeding to contest this action by the Department pursuant to Sections 120.569 and 120.57, Florida Statutes, and Rule 28-106,

.Florida Administrative Code. The proceeding request must be in writing, signed by you, and must be filed with the Department within twenty-one (21) days of your receipt of this Notice. Completion of the attached Election of Proceeding form and/or a petition for administJ:ative hearing will suffice as a written request. The request must be filed with JuHe Jones, Agency Clerk, at the Florida Department of Financial Services, 612 Larson Building, 200 Rast Gaines Street, Tallahassee, Florida 32399-0390. Your written

response must be received by the Department no later than 5:00 p.m. on the twenty-first day after your receipt of this Notice. Mailing the response on the twenty-first day will not preserve your right to a hearing.

YOUR FAILURE TO RESPOND IN WRITING WITHIN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THIS NOTICE WILL CONSTITUTE A WAIVER OF YOUR RIGHT TO REQUEST A PROCEEDING ON THE MATTRRS ALLEGED HERRIN AND AN ORDER OF SUSPENSION OR

REVOCATION WJLL BE ENTERED AGAINST

YOU.

ff you request a proceeding, you must provide information that complies with the requirements of Rule 28-106.2015, Florida Administrative Code. As noted above,

completion of the attached Election of Proceeding form .conforms to these requirements. Specifically, your response must contain:

1. · The name, address, and telephone number, and facsimile number (if any)

   
   

   of the respondent (for the purpose of requesting a hearing in this matter, you are the "respondent"_).

2. The name, address, telephone number, facsimile number of the attorney or qualified representative of the respondent (if any) upo11 whom service of pleadings and other papers shall be made.

3. A statement requesting an administrative hearing identifying those material facts that are in dispute. If there arc none, the petition must so indicate.

4. A statement of when the respondent received notice of the administrative complaint.

5. A statement including tbe file number of the administrative complaint.

If a hearing of any type is requested, you have the right to be represented by counsel or other qualified representative at your expense, to present evidence and argument, to call and cros •examine witnesses, and to compel the attendance of witnesses and the production of documents by subpoena.

If a proceeding is requested lllld there is no dispute of material fact, the provisions of Section 120.57(2), Florida Statutes, apply. In this regard, you may submit oral or written evidence in opposition to the action taken by the Department or a written

statement challenging the grounds upon which the Department has relied.• While a hearing is nonnally not required in the absence of a dispute of fact, if you feel that a hearing is necessary, one will be conducted in Tallahassee, Florida, or by telephonic conference call upon your request.

However, if you dispute material facts which are the basis for the Department's action, you must request an adversarial proceeding pursuant to Sections 120.569 and 120.57( I), Florida Statutes. These proceedings are held before a State Administrative Law Judge of the Division of Adminisirative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request that the hearing be conducted in Tallahassee, Florida.

Failure to follow the procedure outlined with regard to your response to this Notice may result in the request being denied. All prior oral communication or correspondence in this matter shall be considered freeform agency action, and no such oral communication or correspondence shall operate as a valid request for an administrative proceeding. Any request for an administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with 1he guidelines as set out above,

Mediation of this matter pursuant to Section 120.573, Florida Statutes, is not

available. No Department attorney will discuss this matter with you until the response

'

has been received by the Department.

DATEDthi s+ OJ C - , 2011.

9

CERTIFICATE OF SERVICE

J HEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE COMPLAINT has been furnished to: SURF TITLE INC. at 2758

E. Atlantic Blvd., Pompano Beach, Florida 33062A9 2, and at 3318 h Comt, Ft. Lauderdale, Florida 33309 by Certified Mail this  /S day of. n-) , 2011.

es A. Bossart, Esquire

. vision of Legal Services

200 East Gaines St.

Tallahassee, Florida 32399-0333 · (850) 413-4124

STATE OF FLORIDA

DEPARTMENT OF FINANCIAL SERVICES DIVISION OF LEGAL SERVICES

IN THE MATIER OF:

SURF TIT!,H, INC. CASENO.: 114768-11-AG

ELECTION OF PROCEEDINQ

I have received nnd have read the Admlnlslrntiw Complaint flied by the Florida Department. of Financial Services ("Uepartmont") against me, including the Notice ofRigllls contained therein, und I understand my options. I am requosting disposition of this m•ttcr as indicated below. (CHOOSE ONE)

I. [ ] I do no.\ dispute any of the Department's factual allegation• and I l!!!,.!!91 desire a hearing. I understand that by waiving my right to a hearing, the J)opartment may enter a final order that adopts the Administrative Complaint and imposes lhe sanctions sought, including suspending or revoking my llce11ses and appointments es may be appropriate,

1. I lll!..nQl dispute •ny of the J)epartment's factual allegations and I hereby elect a proceeding l-0 be conducted in accordam,e with Section 120.57(2), Plo1·ida S!irtutes. ln this regard, I desire to (CHOOSE ONE):

   [ ] Submit a written statement and documentary ev1d.ence in lieu of a hea.t'lng• or

   
   

   [ ) Porsonaiiy attend a hearing conducted by a dc-partment hearing officer in Tallahassee; or [ ] Attend that same hearing by way of a telephone conference call.

2. [ ] I do dispute one 01· more of the Department's fMtual allegations. I hereby request a hearing pursuant lo Section 120.57(1), Florida Statutes, to be held before the Division of Administrative Hearings. I have attached to this election form the information required by Rule 28.I 06.2015, Florida Administrative Cod,,, $ spooifled in subparagraph (o) of the Notice of Rights. Spooiilcally, I have ldentlt1ed the dispukd issues of material fact.

TO PRESERVE YOUR RIGHT TO A HEARING, YOU MUST Fll.,F, YOUR RESPONS.Jt WITH THE DEPARTMENT Ot•· FINANCIAL SERVICES WITHIN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THE ADMINISTRATIVE COMPLAINT, THE RESPONSE MUST BE RECEIVED BY THE DEPARTMENT NO LATER THAN 5:00 P.M. ON THE TWENTY-FIRST DAY AFTER YOUR RECEIPT OF THE ADMINISTRATIVECOMPLAINT.

TJ-Je addrc. s for filing Is: Julie Jo nes1 DPS Agency Clerk, Florida Tlepartnient ofFimmcild Serviccs.i 6ti. Larson

Building, 200 East Gaines Street, Tallahassee, Florida 32399,0390.

Signature

Date:                                     _

Date Adminhilrutiw

Comploint Received:            ,,                _

lfyou are- repre111ented by an attofnf:y or qualified rep.,estnQltlvc:, plcm1e aUac.h 10 thla ele.dlon form hi& or her namt\ ,uldreS!ll, telephone and t..x nmtther11

Print Nnme

Address:                                   _                

Phone No,;                  _                                  

Fm< No,:                                                 

11

Docket for Case No: 11-002248

Orders for Case No: 11-002248