STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2396

) LOWELL W. LANGMADE and L.A.D. ) REALTY, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on February 8, 1983, in Fort Lauderdale, Florida. The transcript was received on February 21, 1983, and the parties were allowed 15 days thereafter to submit proposed findings of fact and conclusions of law. These were timely filed and have been considered. Where not adopted, they were found to be irrelevant or Immaterial, or contrary to the weight of the credible evidence.

APPEARANCES

For Petitioner: Stephen Cohen, Esquire

Post Office Box 14723

Fort Lauderdale, Florida 33302

For Respondent: C. Lavon Ward, Esquire

629 South West First Avenue Fort Lauderdale, Florida 33301

By Administrative Complaint issued on September 2, 1981, the Respondents were charged with misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, and breach of trust in a business transaction in Florida, and with violating a duty imposed upon them by law in a real estate transaction, in violation of Section 475.25(1)(b), Florida Statutes. Specifically, the Complaint charges that the Respondents represented to a prospective purchaser of rental property that the unpaid balances of two mortgages thereon were $62,000 and $35,000, but that the actual balances were $60,708.66 and $35,428.96.

The Petitioner presented two witnesses in support of the Complaint, namely, the prospective purchaser of the property in question, who is now the owner, and the attorney who represented him in connection with this transaction. The individual respondent testified in his own behalf, and presented one other witness, the attorney who represented the seller of the subject property in connection with this transaction. Four exhibits were offered and received in evidence.

FINDINGS OF FACT

1. The Respondents, Lowell W. Langmade and L. A. D. Realty, Inc., are licensed real estate brokers holding license numbers 0050033 and 0215301, respectively.

   
   

2. The complaining witness who ultimately purchased the property involved in this proceeding, and the Respondent Lowell W. Langmade, were introduced to each other by the attorney for the seller of the property in December of 1980. In January,1981, the seller requested the Respondent to find a buyer for the subject property, consisting of two triplex apartments situated in Broward County.

   
   

3. The Respondent contacted the prospective purchaser later in January, 1981, and showed him the triplex apartments which were offered for sale at a price of $195,000. The property was encumbered by two mortgages, and the Respondent informed the prospective purchaser what the approximate amounts thereof were, namely $62,000 and $38,000.

   
   

4. Several days later the prospective purchaser called the Respondent and instructed him to prepare a contract offering to buy the property for $175,000. This contract was prepared showing existing mortgage balances of approximately

   $62,000 and $38,000, and with the monthly payments shown as an approximate amount.

   
   

5. The prospective purchaser read and signed this contract. Thereafter, it was sent to the seller who also signed it. Copies were distributed to the attorneys representing both parties to the contract.

   
   

6. On February 19, 1981, the seller's attorney called the office of the attorney for the buyer and gave the closing figures including estoppel information on the mortgages. These figures consisted of current mortgage balances, taxes, rents and other prorations. On March 2, 1981, the seller's attorney gave updated closing figures to the office of the buyer's attorney.

   
   

7. On March 9, 1981, the closing took place. By then the actual amounts of the mortgages encumbering the subject property had been ascertained, and the closing statement reflected these actual amounts, namely, $60,708.66 and

   $35,428.96, respectively. The buyer objected to the differences between the actual mortgage balances and the approximations on the contract, but he proceeded to close the transaction and took title to the subject property.

   
   

8. The buyer contends that he had asked for exact mortgage balances throughout the negotiations, and assumed that he would get them. Yet he signed the contract setting forth approximate figures, and proceeded to close after the actual balances had been ascertained. The documentary evidence contradicts the buyer's uncorroborated, self-serving assertions relative to his requirement for actual mortgage balances. Thus, there is insufficient evidence to support a finding of fact that the buyer was misled or tricked by the Respondent, or that the Respondent violated a duty imposed upon him in connection with this transaction.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

10. Section 475.25(1)(b), Florida Statutes, authorizes the Board of Real Estate (now Florida Real Estate Commission) to suspend or revoke a real estate license, or impose an administrative fine not exceeding $1,000 for each separate offense, if it finds that a licensee has been guilty of "fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction" or "has violated a duty imposed upon him by law" in a real estate transaction. The Administrative Complaint charges the Respondents in this case with one count of violation of this statute by representing to a prospective purchaser of real property that the existing mortgages were in one amount when they were actually less.

    
    

11. The prospective purchaser and the Respondents presented conflicting evidence on the issue of whether actual mortgage balances were requested or not. There is no evidence to corroborate the testimony of the prospective purchaser; yet, the contract itself corroborates the Respondent's testimony. This contract states what the mortgage balances were in approximate amounts. After the execution of this contract, the Respondent left the matter of closing to the attorneys for the parties.

    
    

12. As a result, there is not sufficient evidence to support the allegations of the Administrative Complaint, and it should be dismissed. Other assertions of the purchaser at the hearing which were received without objection, such as threats made by the Respondent, are outside the scope of the single count set forth in the Complaint, and these have been disregarded.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against the Respondents,

Lowell W. Langmade and L. A. D. Realty, Inc., be dismissed.

THIS RECOMMENDED ORDER entered this 6 day of April, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6 day of April, 1983.

COPIES FURNISHED:

Stephen Cohen, Esquire Post Office Box 14723

Fort Lauderdale, Florida 33302

C. Lavon Ward, Esquire

629 South West First Avenue Fort Lauderdale, Florida 33301

Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

William M. Furlow, Esquire Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 81-002396

Orders for Case No: 81-002396