STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
APT MORTGAGE CORPORATION, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 86-2876
) DEPARTMENT OF BANKING AND FINANCE, ) OFFICE OF THE COMPTROLLER, )
)
Respondent. )
) LEE CALDWELL, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 86-2877
) DEPARTMENT OF BANKING AND FINANCE, ) OFFICE OF THE COMPTROLLER, )
)
Respondent. )
) BEVERLY BACKHOFF, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 86-4730
) DEPARTMENT OF BANKING AND FINANCE, ) OFFICE OF THE COMPTROLLER, )
)
Respondent. )
) WILMA SPRAGUE, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 86-4731
) DEPARTMENT OF BANKING AND FINANCE ) OFFICE OF THE COMPTROLLER, )
)
Respondent. )
) HARRY A. WRIGHT, et al, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4734
) DEPARTMENT OF BANKING AND FINANCE, ) OFFICE OF THE COMPTROLLER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, James D. Bradwell, held a public hearing in this case on March 27, 1987. The parties completed their post-hearing submissions on November 18, 1987. The parties proposed memoranda were considered by me in preparation of this Recommended Order. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.
APPEARANCES
For Petitioners: Alberto Tellechea, Esquire
on behalf of Anglada
850 First Bankers Building
135 West Central Boulevard Orlando, Florida 32801
Stephen Kessler, Esquire
on behalf of Ferdinand & Campbell 3510 Biscayne Boulevard, #203-B Miami, Florida 33137
Arthur M. Wolff, Esquire on behalf of Zinni
Post Office Box 11678
Ft. Lauderdale, Florida 33339
Ivor Hassey, Esquire &
E. Ross Shulmister, Esquire on behalf of Schlaugat & Hebl
3081 East Commercial Boulevard Ft. Lauderdale, Florida 33308
John C. Rayson, Esquire
2400 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306
For Respondent: Paul C. Stadler, Jr., Esquire &
Miles Gopman, Esquire
Department of Banking and Finance Division of Finance
Suite 1302, The Capitol Tallahassee, Florida 32399-0350
ISSUE PRESENTED
The issue presented for decision herein is which of several claimants to payments from the Mortgage Brokerage Guaranty Fund are now entitled to payment and, if any, the amount of the payments due from the fund. A related issue concerns the priority of claims and/or whether certain claimants have waived or abandoned their claims.
INTRODUCTION AND BACKGROUND
The State of Florida Department of Banking and Finance, Division of Finance, has entered Notices of Intent to Issue Final Orders which may Grant or Deny Claims from the Mortgage Brokerage Guaranty Fund (Fund) regarding the activities of the following licensed mortgage brokers: Apt Mortgage Corporation, Ernest Schleusener, Lee Caldwell, Harry A. Wright, Beverly Backhoff a/k/a Beverly Backhoff Billquist and Wilma S. Sprague.
Several claimants specifically listed hereinafter have applied for payments from the fund and the Department of Banking and Finance issued notices of intent respecting their claims.
As to the five separate licensed entities or individuals involved, claimants have requested formal hearings alleging that they have been aggrieved by the mortgage brokerage activities of the foregoing licensees and in their hearing request, filed claims against the Fund.
Frank and Ann Zinni (The Zinni claim) recently filed two motions to file additional evidence. This evidence was filed and was considered by me in preparation of the Recommended Order based on the Department's written notification that it did not object to my consideration of such additional evidence.
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, stipulations of the parties, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings.
One of the provisions of the Mortgage Brokerage Act, Chapter 494, Florida Statutes, provides that the Department of Banking and Finance (Department) is charged with the responsibility and duty of administering the Fund, which includes the duty to approve or deny applications for payment from the fund as set forth in Section 494.042(2), Florida Statutes.
The "fund" was created in 1977 to provide recovery for any person who meets all of the conditions prescribed in section 494.043, Florida Statutes.
The Department is obliged to disburse from the fund pursuant to section 494.044, Florida Statutes.
Section 494.042, Florida Statutes (Supp. 1986) provides: (1)(a) Effective September 1, 1977, the
Treasurer shall establish a Mortgage
Brokerage. Guaranty Fund. A fee of $50 shall be added to the fee for both application and renewal of a mortgage brokerage business registration, and a fee of $10 shall be added
to the fee for both application and renewal of mortgage broker licenses. This fee shall be in addition to the regular application or renewal fee and shall be transferred to or deposited in the Mortgage Brokerage Guaranty Fund.
From October 1, 1985, until the
balance in the fund first reaches the sum of
$1.5 million, the fees provided for in paragraph (a) shall apply only to an applicant who has not previously been issued a license or registration under this chapter.
If the fund at any time exceeds $1.5 million, collection of special fees for this fund shall be discontinued, and such special fees shall not be reimposed unless the fund is reduced below $500,000 by disbursement made in accordance with s. 494.044.
(2) The Mortgage Brokerage Guaranty Fund shall be disbursed as provided in s. 494.044, upon approval by the division, to any party to a mortgage financing transaction who is adjudged by a Florida court of competent jurisdiction to have suffered monetary damages as a result of any violation of this
chapter committed by a licensee or registrant.
Section 494.043, Florida Statutes (Supp. 1986) provides:
Any person who was a party to a mortgage financing transaction shall be eligible
to seek recovery from the Mortgage Brokerage Guaranty Fund if:
The person has recorded a final judgment issued by a Florida court of competent jurisdiction in any action wherein the cause of action was based on s. 494.042(2);
The persona has caused to be issued a writ of execution upon such judgment and the officer executing the same has made a return showing that no personal or real property of the judgment debtor liable to be levied upon in satisfaction of the judgment can be found or that the amount realized on the sale of the judgment debtor's property pursuant to
such execution was insufficient to satisfy the judgment;
The person has made all reasonable searches and inquiries to ascertain whether the judgment debtor possesses real or personal property or other assets subject to being
sold or applied in satisfaction of the judgment, and by his search he has discovered no property or assets or he has discovered property and assets and has taken all
necessary action and proceedings for the application thereof to the judgment, but the amount thereby realized was insufficient to satisfy the judgment;
The person has applied any amounts recovered from the judgment debtor, or from any other source, to the damages awarded by the court.
The person, at the time the action was instituted, gave notice and provided a copy of the complaint to the division by
certified mail; however, the requirement of a timely giving of notice may be waived by the department upon a showing of good cause; and
The act for which recovery is sought occurred on or after September 1, 1977. Recovery of the increased benefits allowable pursuant to the amendments to S. 494.044 which are effective October 1, 1985, shall be based on a cause of action which arose on or after that date.
The requirements of paragraphs (1)(a), (b), (c), and (e) are not applicable if the licensee or registrant upon which the claim is sought has filed for bankruptcy or has been adjudicated bankrupt; however, in such event the claimant shall file a proof of claim in the bankruptcy proceedings and shall notify the department by certified mail of the claim by enclosing a copy of the proof
of claim and all supporting documents.
Section 494.044, Florida Statutes, (Supp. 1986) provides:
(1) Any person who meets all of the conditions prescribed in s. 494.043 may apply to the department for payment to be made to such person from the Mortgage Brokerage Guaranty Fund in the amount equal to the unsatisfied portion of that person's
judgment or judgments or $20,000, whichever is less, but only to the extent and amount reflected in the judgment as being actual or compensatory damages. As to claims against any one licensee or registrant, payments shall be made to all persons meeting the requirements of s. 494.043 upon the expiration of 2 years from the date the first complete and valid notice is received by the department. Persons who give notice after
2 years from the date the first complete and valid notice is received and who otherwise comply with the conditions precedent to recovery may recover from any remaining portion of the $100,000 aggregate, in an amount equal to the unsatisfied portion of that person's judgment or $20,000, whichever
is less, but only to the extent and amount reflected in the judgment as being actual or compensatory damages, with claims being
paid in the order notice is received until the $100,000 aggregate has been fully disbursed.
* * *
(3) Payments for claims shall be limited in the aggregate to $100,000, regardless of the number of claimants involved, against any one mortgage broker or registrant. If the total claims exceed the aggregate limit of
$100,000, the department shall prorate the payment based on the ratio that the person's claim bears to the total claims filed.
Licensees Apt and Caldwell have filed for bankruptcy. Accordingly, claimants whose claims were unperfected as of September 1, 1986 are not required to satisfy the requirements of section 494.043(1), Florida Statutes (Supp. 1986). However, pursuant to subsection 494.043(2)(Supp. 1986), claimants must provide the Department a proof of claim by certified mail. All claimants proceeding against licensees Schleusener, Sprague, Wright and Backhoff are required to satisfy section 494.043(1) as there is no showing that they have filed for bankruptcy.
At all times material hereto, Petitioners, Apt Mortgage Corporation, Lee Caldwell, Beverly Backhoff, Wilma Sprague and Harry Wright were licensed Mortgage Brokers under Chapter 494, Florida Statutes, having been issued licenses by the Department.
On March 30, 1987, the Department received a letter dated March 27, 1987 from attorney John C. Rayson, Esquire on behalf of the Zinni Claim against Lee Caldwell with the attached proof of claim. Thereafter on March 31, 1987, the Department's counsel, in conversation with attorney Rayson's secretary, was advised that the proof of claim letter mailed to the Department respecting the Zinni's was sent by certified mail but that the returned receipt part had fallen from the letter. An examination of the envelope submitted reveals that the letter was, in fact, sent by certified mail and contained the proper proof of claim.
Additionally, by certified letter dated March 31, 1987, the Department received on April 2, 1987, a second letter from John C. Rayson on behalf of the Zinni's, against Caldwell with the attached "proof of claim".
On March 30, 1987, the Department received by certified mail from Stephen F. Kessler, Esquire, on behalf of the Campbell and Ferdinand Claims:
Schlaugat Claim.
On October 14, 1986, the Department received by certified mail an Amended Complaint against Apt in Case No. 86 15853CB, which was filed on August 29, 1986. On March 23, 1987, the Department received by certified mail a recorded Final Declaratory Judgment in Case No. 86-15853CB against Apt in the principal amount of $50,000 plus 18 percent interest from January 18, 1984.
On March 16, 1987, the Department received an Amended Complaint against Backhoff in Case No. 86-15856CH.
On March 16, 1987, the Department received an Amended Complaint against Schleusener, Caldwell, Wright and Sprague in Case No. 86-11072CY.
Hebl Claim. On October 14, 1986, the Department received by certified mail an Amended Complaint against Apt in Case No. 86-15853 CB, which was filed on August 29, 1986. On March 23, 1987, the Department received, by certified mail, a recorded Final Judgment in Case No. 86-15853 CB against Apt in the principal amount of $10,000 plus interest at 18 percent from December 29, 1983.
Holdheim Claim.
By certified mail dated March 27, 1987, the Department received a letter on April 3, 1987 from Attorney Arthur N. Wolff, on behalf of Evelyn M. Holdheim with the attached documents:
Proof of Claim by Evelyn M. Holdheim against Doretha Lee Caldwell,
Balloon Mortgage Note dated April 11, 1983,
Complaint in Foreclosure in the 17th Judicial Circuit, Case No. 84- 7037CV by Evelyn M. Holdheim against Ernest Schleusener and Doretha Lee Caldwell,
Mortgage Deed dated April 11, 1983,
Proof of Claim; acceptance or rejection of claim by Evelyn M. Holdheim against Doretha Lee Caldwell,
Letter dated March 31, 1987, by attorney Arthur N. Wolff to Clerk of
U.S. Bankruptcy Court, Proposed Order and Motion.
On October 15, 1986, the Department received a recorded Final Judgment against Schleusener, Case No. 84-7037 CV, which has been assigned to the Department.
On April 27, 1987, the Department received a Withdrawal of Motion regarding Caldwell in the Bankruptcy Court wherein it is represented that it would be a useless effort to proceed against Caldwell in Case No. 84-7037 CV. See Exhibit A.
Fuhrman and LaCotche
Certified mail notice that an action will be instituted against Apt received by the Department on May 4, 1984.
Complaint against Apt, Case No. 84-15882, was received by the Department on October 3, 1985. Complaint filed July 12, 1984.
On October 15, 1987, the Fuhrman and LaCotche claims were dismissed from circuit court for lack of prosecution.
Campbell Claim. On March 30, 1987, the Department received by certified mail:
Proof of Claim by L. D. Mervyn Campbell against Doretha Lee Caldwell.
Partial Final Judgment in the Circuit Court of the 17th Judicial Circuit against Doretha Lee Caldwell entered on August 4, 1986,
Proof of Claim by Cecil Ferdinand against Doretha Lee Caldwell,
Partial Final Judgment in the Circuit Court of the 17th Judicial Circuit against Doretha Lee Caldwell was entered on August 4, 1986,
Proof of Claim by L. D. Mervyn Campbell against Apt,
Proof of claim by Cecil Ferdinand against Apt.
A Proof of Claim regarding Caldwell in the federal bankruptcy court, Case No. 85-01060, and a Partial Final Judgment against Caldwell in Case No. 86- 11362 DF, and
A Proof of Claim against Apt in the federal bankruptcy court, Case No. 84-01247.
Ferdinand Claim. On March 30, 1987, the Department received by certified mail:
A Proof of Claim regarding Caldwell in the federal bankruptcy court, Case No. 85-01060, and a partial Final Judgment against Caldwell in Case No. 84- 11149 Co, and
39 . A Proof of Claim against Apt in the federal bankruptcy court, Case No. 84-01247.
Stuart, Kutik and Marques Claim
No significant documentation has been filed with the Department.
Paine
Complaint against Schleusener, Caldwell, Wright, Backhoff and Sprague, Case No. 84-18235 CX, received by the Department on August 29, 1984. Complaint filed August 8, 1984. 1/
Notice by certified mail received by the Department on September 10, 1984.
Schiavone et al. Claim
Certified mail notice of an action against Apt, Schleusener, Sprague, and Wright received by Department on March 22, 1985.
Certified mail notice with complaint against Schleusener, Caldwell, Wright, and Sprague, received by the Department on April 14, 1986. Case No. unknown.
Zinni
Certified mail notice against Apt, Schleusener, Caldwell, Wright received by the Department on April 8, 1985. Complaint filed on April 18, 1984.
Final Summary Judgment, Case No. 84-8669 CG, entered on June 24, 1986, against Caldwell and Wright.
Turner
Certified mail notice with complaint against Apt, Caldwell, Wright, and Sprague, Case No. 85-28746 CM, received by the Department on January 8, 1986. Complaint filed November 21, 1985.
Mitchell Claim
No significant documentation has been filed with the Department.
Anglada Claim
On July 3, 1986, the Department received certified mail notice of an action against Sprague, Case No. 85-6531, which was filed on July 15, 1985.
Complaint, Case No. 85-6531, against Sprague and Wright received by Department on August 4, 1986.
Judgment against Wright and Sprague entered on July 7, 1986.
Certified mail notice of a judgment against Wright received by Department on August 18, 1986.
Writ of Executions against Sprague and Wright returned nulla bona on September 3, 1986.
Interrogatories served on August 1986, have not been answered and Certificate of Non-Attendance at Depositions of Sprague and Wright dated September 2, 1986.
Judgment recorded October 9, 1986.
Proof of Claim against Debtor Apt, Case No. 84-01247, dated September 9, 1984, in the Bankruptcy Court received by the Department on August 18, 1986, by regular mail.
Smith
Proof of Claim against Debtor Apt, Case No. 84-01247, dated August 28, 1984, in Bankruptcy Court received by the Department on October 6, 1986, by certified mail.
Certified mail notice of an action against Caldwell, Wright Sprague, and Apt received by the Department on November 5, 1986. Case No. Unknown.
APT/SCHLEUSENER 2/
Date certified Mail Received | Claimant(s) | Case No., if Known, and Proof of Claim | Claim Amount |
1. 3/29/84 | Schlaugat | 86-15853CB against Apt | $10,000* |
2. | 5/4/84 | Fuhrman & LaCotche | 84-15882 against Apt | 10,000 | ||
3. | 9/10/84 | Paine | 84-18235CX against Schleusener | 10,000 | ||
4. | 3/22/85 | D&R Schiavone | Suit against | 10,000 | ||
Paul, | Schleusener | 10,000 | ||||
Miller, | 10,000 | |||||
Barron, | 10,000 | |||||
Margerite | 10,000 | |||||
5. | 4/8/85 | Zinni | 84-8669CG against Schleusener | 10,000* | ||
6. | 1/8/86 | Turner | 85-28746CM against Apt | 10,000 | ||
7 a. b. | 8/1/86 8/1/86 | Schlaugat Hebl | 86-11072CY against Schleusener 86-11072CY against | 10,000* 10,000* | ||
c. | 8/1/86 | Schlaugat | Schleusener Apt Proof of Claim | 10,000* | ||
d. | 8/1/86 | Hebl | Apt Proof of Claim | 10,000* | ||
8. | 10/6/86 | Smith | Apt Proof of Claim | 10,000* | ||
9. | 10/14/86 | Hebl | 86-15853 CB against Apt | 10,000* | ||
10. | 11/5/86 | Smith | Against Apt | 10,000* | ||
11 a. 3/30/87 | Zinni | Apt | Proof | of | Claim | 10,000* |
b. 3/30/87 | Campbell | Apt | Proof | of | Claim | 10,000 |
c. 3/30/87 | Ferdinand | Apt | Proof | of | Claim | 10,000 |
12. 4/2/87 | Zinni | Apt | Proof | of | Claim | 10,000* |
CALDWELL
Case No., if
Date Certified Mail Received | Claimant(s) | Known, and Proof of Claim | Claim Amount |
1. 5/22/84 | Campbell | 84-11362DF | $10,000* |
2. 5/24/84 | Ferdinand | 84-11149 | 10,000* |
3. 9/10/84 | Paine | 84-18235CX | 10,000 |
4. 4/8/85 | Zinni | 84-8669CG | 10,000 |
5. 1/8/86 | Turner | 85-2876CM | 10,000 |
6. | 4/14/86 | D&R Schiavone | unknown | 10,000 | ||
Paul, | unknown | 10,000 | ||||
Miller, | unknown | 10,000 | ||||
Barron, & | unknown | 10,000 | ||||
Margerite | unknown | 10,000 | ||||
7 a. 8/1/86 b. 8/1/86 | Schlaugat Hebl | 86-11072CY and Proof of 86-11072CY | Claim | 10,000 10,000 | ||
and Proof of | Claim | |||||
8. | 11/5/1986 | Smith | Case No. | unknown | 10,000 | |
9 a. 3/30/87 | Campbell | Proof | of | Claim | 10,000* | |
b. 3/30/87 | Ferdinand | Proof | of | Claim | 10,000* | |
SPRAGUE
Date Certified Mail Received | Claimant(s) Case NO. | Claim Amount | ||
1. | 9/10/84 | Paine | 84-18235CX | $10,000 |
2. | 3/22/85 | D&R Schiavone, unknown | 10,000 | |
Paul, unknown | 10,000 | |||
Miller, unknown | 10,000 | |||
Barron, unknown | 10,000 | |||
& Margerite unknown | 10,000 | |||
3. 1/8/86 | Turner 85-28746CM | 10,000 | ||
4. 7/3/86 | Anglada 85-6531 | 10,000 | ||
5 a. 8/1/86 | Schlaugat 86-11072CY | 10,000 | ||
b. 8/1/86 | Hebl 86-11072CY | 10,000 | ||
6. 11/5/86 | Smith unknown | 10,000 | ||
D. BACKHOFF | ||||
Date Certified Mail Received | Claimant(s) Case No. | Claim Amount | ||
1. 9/10/84 | Paine 84-18235CX | $10,000 | ||
2. 7/22/86 | Schlauqat 86-15856CH | 10,000 | ||
3 a. 9/8/86 | Campbell 86-10964CK | 10,000 | ||
b. 9/8/86 | Ferdinand 86-10964CK | 10,000 | ||
E. WRIGHT | ||||
Date Certified Mail Received | Claimant(s) Case No. | Claim Amount | ||
1. 9/10/87 | Paine 84-18235CX | $10,000 | ||
2. 3/22/85 | D&R Schiavone, unknown | 10,000 |
Paul, unknown | 10,000 | |
Miller, unknown | 10,000 | |
Barron, & unknown | 10,000 | |
Margerite unknown | 10,000 | |
3. 4/8/85 | Zinni 84-8669CG | 10,000 |
4. 1/8/86 | Turner 85-28746CM | 10,000 |
5 a. 8/1/86 | Schlaugat 86-11072CY | 10,000 |
b. 8/1/86 | Hebl 86-11072CY | 10,000 |
6. 8/4/86 | Anglada 86-6531 | 10,000 |
7. 11/5/86 | Smith unknown | 10,000 |
III STATUS OF CLAIMS |
NOT PERFECTED WITHIN TWO-YEAR PERIOD
APT/SCHLEUSENER
Claimant(s) | Provisions Satisfied | Provisions Not satisfied | ||
1. Schlaugat | s. | 494.042(2), 494.043(1)(f) 494.043(2) (Supp. 1986) | & | s. 494.044(2) |
2. Furhman & LaCotche | 494.043(1)(f) | 494.042(2), | ||
(Supp. 1986) | 494.043(2), & 494.044(2) (Supp. 1986) | |||
3. Paine | 494.043(1)(e) & (f)(Supp. 1986) | 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) | ||
4. D&R Schiavone, Paul, Miller, | 494.043(1)(e) & | 494.043(1)(a)-(d) | ||
Barron, & Margerite (f)(Supp. 1986) & 494.044(2)
(Supp. 1986)
5. Zinni | 494.043(1)(e) (Sup. 1986) | & | (f) | 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) |
6. Turner | 494.043(1)(f) (Supp. 1986) | 494.042(2), 494.043(2), & 494.044(2) (Supp. 1986) |
7 a. b. | Schlaugat Hebl | 494.043(1)(e) (Supp. 1986) 494.043(1)(e) | & & | (f) (f) | 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) 494.043(1)(a)-(d) |
c. | Schlaugat | (Supp. 1986) See paragraph | 1 | & 494.044(2) (Supp. 1986) | |
d. | Hebl | 494.043(1)(f) (Supp. 1986) | & | (2) | 494.042(2) & 494.044(2) (Supp. 1986) |
8. Smith | 494.043(1)(f) (Supp. 1986) | & | (2) | 494.042(2) & 494.044(2) (Supp. 1986) | |
9. Hebl | 494.042(2) & 494.043(1)(f) | & | (2) | 494.044(2) (Supp. 1986) | |
(Supp. 1986) | |||||
10. Smith | 494.043(1)(f) (Supp. 1986) | & | (2) | 494.042(2) & 494.044(2) (Supp. 1986) | |
11 a. b. c. | Zinni Campbell Ferdinand | 494.043 (1)(f) & (2) (Supp. 1986) 494.043(1)(f) & (2) (Supp. 1986) 494.043(1)(f) & (2) (Supp. 1986) | 494.042(2) & 494.044(2) (Supp. 1986) 494.042(2) & 494.044(2) (Supp. 1986) 494.042(2) & 494.044(2) (Supp. 1986) | ||
Zinni See paragraph 11a
CALDWELL
Claimant(s) | Provisions Satisfied | Provisions Not Satisfied | |||
1. | Campbell | s. | 494.042(2) & 494.043 (1)(f) & (2) - (Supp. | 1986) | s. 494.044(2) (Supp. 1986) |
2. Ferdinand | 494.042(2) & 494.043 (1)(f) & (2)(Supp. 1986) | 494.044(2) (Supp. 1986) | |||
3. Paine | 494.043(1)(f)(Supp. 1986) | 494.042(2), 494.043(2), & 494.044(2) (Supp. 1986) | |||
4. Zinni | 494.042(2) & 494.043(1)(f) (Supp. 1986) | 494.043(2) & 494.044(2) (Supp. 1986) | |||
5. | Turner | 494.043(1)(f) (Supp. 1986) | 494.042(2), 494.043(2), & 494.044(2) (Sup. 1986) | |||
6. | D&R Schiavone, 494.043(1)(f) Paul, Miller, (Supp. 1986) Barron, & Margerite | 494.042(2), 494.043(2) & 494.044(2) (Supp. 1986) | ||||
7 a. b. | Schlaugat Hebl | 494.043(1)(f) (Supp. 1986) 494.043(1)(f) | & & | (2) (2) | 494.042(2) & 494.044(2) (Supp. 1986) 494.042(2) & | |
c. | Schlaugat | (Supp. 1986) 494.043(1)(f) | & | (2) | 494.044(2) (Supp. 1986) 494.042(2) & | |
(Supp. 1986) | 494.044(2) (Supp. 1986) | |||||
d. | Hebl | 494.043 (1)(f) (Supp. 1986) | & | (2) | 494.042(2) & 494.044 (2) (Supp. 1986) | |
8. Smith | 494.043(1)(f) (Supp. 1986) | 494.042(2), 494.043(2) & 494.044(2) (Supp. 1986) | ||||
SPRAGUE
Claimant(s) | Provisions Satisfied | Provisions Not Satisfied | ||||
1. | Paine | s. | 494.043(1)(e) (Supp. 1986) | & | (f) | 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) |
2. D&R Schiavone, Paul, Miller, Barron, & Margerite | 494.043(1)(e) (Supp. 1986) | & | (f) | 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) | ||
3. Turner | 494.043(1)(e) (Supp. 1986) | & | (f) | 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) | ||
4. Anglada | 494.043(1) (Supp. 1986) | 494.044(2) (Supp. 1986) | ||||
5 a. Schlaugat | 494.043(1)(e) (Supp. 1986) | & | (f) | 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) | ||
b. Hebl | 494.043 (1)(e) & (f) (Supp. 1986) | 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) | ||||
6. Smith 494.043(1)(e) & (f) 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2)
(Supp. 1986)
BACKHOFF
Provisions Provisions Claimant(s) Satisfied Not Satisfied
1. Paine s. 494.043(1)(e) & (f) s. 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2)
(Supp. 1986)
2. Schlaugat 494.043(1)(e) & (f) 494.043(1)(a)-(d)
(Supp. 1986) & 494.044(2)
(Supp. 1986)
3 a. Campbell 494.043(1)(e) & (f) 494.043(1)(a)-(d)
(Supp. 1986) & 494.044(2)
(Supp. 1986)
b. Ferdinand 494.043(1)(e) & (f) 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2)
(Supp. 1986)
WRIGHT
Provisions Provisions Claimant(s) Satisfied Not Satisfied
1. Paine s. 494.043(1)(e) & (f) s. 494.043(1)(a)-(d)
(Supp. 1986) & 494.044(2)
(Supp. 1986)
2. D&R Schiavone, 494.043(1)(e) & (f) 494.043(1)(a)-(d)
Paul, Miller, (Supp. 1986) & 494.044(2)
Barron, & (Supp. 1986)
Margerite
3. Zinni 494.043(1)(a), (e) & 494.043(1)(b), (c)
(f)(Supp. 1986) & (d) & 494.044
(2)(Supp. 1986)
4. Turner 494.0431)(e) & (f) 494.043(1)(a)-(d)
(Supp. 1986) & 494.044(2)(Supp.
1986)
5 a. Schlaugat 494.043(1)(e) & (f) 494.043(1)(a)-(d)
(Supp. 1986) & 494.044(2)(Supp.
1986)
b. Hebl 494.043(1)(e) & (f) 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2)(Supp.
1986)
6. | Anglada | 494.043(1)(Supp. | 494.044(2) |
1986) | (Supp. 1986) |
7. Smith | 494.043(1)(e) & (f) | 494.043(1)(a)-(d) |
(Supp. 1986) | & 494.044(2)(Supp. | |
1986) |
*Although some claimants have filed more than one notice by certified mail, pursuant to Fla. Stat. Section 494.044(1), each claimant is only entitled to
$10,000 per licensee.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action. Section 120.57(1), Florida Statutes.
The legal question posed by the facts herein involves the priority of payment for eligible claimants as set forth in Section 494.044(1), Florida Statutes (supp. 1986). It is undisputed that the language of the statute does not make its meaning plain. As example, one section provides "as to claims against any one licensee or registrant, payments shall be made to all persons meeting the requirements of Section 494.043 upon the expiration of 2 years from the date the first complete and valid notice is received by the Department." Arguably, only claimants eligible as of the expiration of the two year period are entitled to payments from the fund. Reading further, the statute provides: "Persons who give notice after 2 years from the date the first complete and valid notice is received and who otherwise comply with the conditions precedent to recovery may recover from any remaining portion of the $100,000 aggregate, in an amount equal to the unsatisfied portion of that person's judgment or $20,000, whichever is less, but only to the extent and amount reflected in the judgment as being actual or compensatory damages, with claims being paid in the order notice is received until the $100,000 aggregate has been fully disbursed."
Thus, in viewing this recovery procedure in a sensible manner, a construction must be chosen that provides for a meaningful construction." Johns v. Feder,
485 So.2d 409 (Fla 1986). Furthermore, the statute should not be construed in a way that would lead to illogical or absurd results. Wakulla County v. Davis,
395 So2d 540 (Fla 1981). In so viewing the statute, it is concluded that the logical construction to be placed on this statute is that it creates a class of claimants who are secondary to those claimants who achieved eligibility within the two-year period. In so doing, the statute rewards claimants who diligently pursue their claims and satisfy all conditions precedent within two-years from date the first complete and valid notice is received by the Department. This favored treatment has been recognized by the legislature in rewarding claimants who diligently pursue their claims in other areas. See, for example, the real estate recovery fund established in Chapter 475, Florida Statutes.
Based thereon, it is herein concluded that Claimants Holdheim, Schlaugat and Hebl perfected their claims against licensee Apt/Schleusener; claimants Campbell and Ferdinand perfected their claims against licensee Caldwell; claimant Anglada perfected its claim against licensee Sprague and Claimant Anglada perfected its claim against licensee Wright. These claimants completed all conditions precedent for recovery within two-years from the date the first complete and valid notice was received by the Department and therefore are eligible for recovery from the fund.
Some claimants argued that they are entitled to priority over other second class claimants who gave notice within the two-year period but who failed to perfect their claims because they thereby waived or abandoned their claim. The Department has not addressed any prioritization of claims within the second class claimants and it appears that those claimants are now eligible for payment
based on their having completed all conditions precedent for recovery. Therefore, it is now appropriate for the agency to address the prioritization of claims within the unperfected class of claimants. At that juncture, issues of abandonment or waiver of claims may be addressed, as appropriate, by the Agency and, of course such action can be challenged by substantially affected claimants based on any intended ruling by the Department which adversely affects them.
Thus, it would be inappropriate and premature to address issues of abandonment or waiver of claims at this time in the Recommended Order.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Department of Banking and Finance, Office of Comptroller, enter a Final Order determining that claimants Holdheim, Schlaugat, Hebl, Campbell, Ferdinand, Anglada perfected their claims against the licensees as noted herein. Such claimants are entitled to recover from the fund the statutory limit in effect at the time of $10,000 per licensee since the cause of action for each claimant commenced before October 1, 1985.
As to all remaining claimants whose claims were not perfected within the two (2) year period but have since completed all prerequisites for recovery from the fund, it is recommended that the Department evaluate such claims at this time and take appropriate action. 3/
DONE and RECOMMENDED this 14th day of December, 1987, in Tallahassee, Florida.
JAMES E. BRADWELL
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 14th day of December, 1987.
ENDNOTES
1/ The Paine Claim was voluntarily dismissed against the Schleusener estate on October 13, 1987 and has been amicably resolved.
2/ Without deciding prioritization of claims, waiver or abandonment of unperfected claims, the preceding information showing inter alia the licensee involved; claimant, amount of claim and provisions of applicable law which is either satisfied or unsatisfied based on a review of the documentary evidence submitted, is provided the Department for consideration for initial action and/or review.
3/ Consideration was given to the Department's argument that the undersigned establish a prioritization for unperfected claimants even in the absence of such initial consideration by the Department since such a procedure was utilized by another Hearing Officer which, upon review by the Department, was adopted.
Murphy v. Department of Banking and Finance, DOAH Case No. 86 1704, Final Order issued December 18, 1986. Based on the dynamic nature of the changes in the law relative to application of the notice provisions, rights to recovery and amounts of reimbursement, the more orderly procedure appears to be one which defers to initial action or review by the Department.
COPIES FURNISHED:
M. Ross Schulmister, Esquire 3081 East Commercial Boulevard Ft. Lauderdale, Florida 33308
Albert F. Tellechea, Esquire 850 First Bankers Building
135 West Central Boulevard Orlando, Florida 32801
John C. Rayson, Esquire
2400 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306
Paul C. Stadler, Jr., Esquire Office of the Comptroller 1302 The Capitol
Tallahassee, Florida 32301
Stephen F. Kessler, Esquire 3510 Biscayne Boulevard, #203-B Miami, Florida 33137
Arthur M. Wolff, Esquire Post Office Box 11678
Ft. Lauderdale, Florida 33339
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE
DIVISION OF FINANCE
APT MORTGAGE CORPORATION; ERNEST
SCHLEUSENER, Principal Mortgage Broker; Charles and Mary Schlaugat;
James and Gladys Hebl; Evelyn M. Administrative Holdheim; Robert H. Fuhrman and proceeding Nos. Dorothy LaCotche; L.L. Mervyn 529-F-10/85 and
Campbell; Cecil Ferdinand; Ronald 443-F-10/84 Stuart; Ronald Kutik; Harry and
Seena Kutik; Lucille and Agness DOAH Case No. 86-2876 Marques; Dale A. Paine; Domonic
and Rudolf Schiavone; Elenore Paul; Rose Marie Miller; Joy Ann Barron; Lucille Margerite; Frank and Ann Zinni; Sanders and Maureen Turner; Charles and Rita Mitchell; Jose and Isuara Anglada; Charles Smith,
Petitioners,
vs.
DEPARTMENT OF BANKING AND FINANCE, OFFICE OF THE COMPTROLLER,
Respondent.
/
FINAL ORDER GRANTING OR DENYING PAYMENT FROM THE MORTGAGE BROKERAGE GUARANTY FUND
RE APT MORTGAGE CORPORATION, AND NOTICE OF RIGHTS
The State of Florida Department of Banking and Finance, Division of Finance (hereinafter Department), being authorized and directed to administer the Mortgage Brokerage Guaranty Fund (hereinafter the Fund) codified in Sections 494.042, 494.043, 494.044 and 494.045, Florida Statutes, hereby enters this Final Order approving or denying the following applications for payment from the Fund arising from alleged violations of the provisions of Chapter 494, Florida Statutes, by APT Mortgage Corporation (hereinafter APT).
FINDINGS OF FACT
1a. Under the provisions of the Mortgage Brokerage Act, Chapter 494, Florida Statutes, the Department is charged with the responsibility and duty of administering the Fund, which includes the duty to approve or deny applications for payment from the Fund, as set forth in Section 494.042(2), Florida Statutes.
b. On June 4, 1986, the Department issued its Notice of Intention to Render a Final Order Granting or Denying Payment from the Mortgage Brokerage Guaranty Fund re Apt Mortgage Corporation, and Notice of Rights (hereinafter Notice of Intent) in Administrative Proceeding Nos.: 529-F-10/85 and 443-F- 10/84. A formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes, was timely requested and the Department granted the Petitions and requested DOAH to assign a Hearing Officer for that purpose. James E. Bradwell was assigned as the Hearing Officer by DOAH in Case No. 86-2876. Subsequently, by order entered on December 18, 1986, this proceeding was consolidated with DOAH Case Nos. 86-2877, 86-4730, 86-4731, and 86-4734. On March 27, 1987, the final hearing was held and on December 14, 1987, the Hearing Officer entered a Recommended Order to which no exceptions were filed.
On December 21, 1979, Lee Caldwell became licensed as the principle mortgage broker of APT, license number HB-8158. Several months later on August 29, 1980, Ernest Schleusener became the principle mortgage broker of APT and
Caldwell became an additional broker with APT, having license number HA-1599. Accordingly, as Ernest Schleusener was principle mortgage broker of APT, the Department considers a claim against Ernest Schleusener to be a claim against APT and vice versa. On December 21, 1979, January 30, 1981, and February 15, 1981, respectively, Wilma S. Sprague, Beverly Backoff Billquist a/k/a Beverly Backhoff, and Harry A. Wright became additional mortgage brokers with APT, having license numbers HA-1238, HA-1892, and HA-1921, respectively. On January 7, 1984, Ernest Schleusener died and his license was therefore cancelled.
Accordingly, as of said date APT ceased to be licensed as a mortgage broker with the Department.
Charme Properties, Inc., Pinewood International, Theodore H. Lawlis, and Robert C. Beiter were not licensed with the Department at all times material hereto.
Schlaugat Claim. I. On March 29, 1984, the Department received a letter by certified mail by Charles and Mary Schlaugat stating that they intended "to seek a recovery against APT Mortgage Corporation." 1/ By letter dated April 4, 1984, the Department acknowledged receipt of said letter and requested to be kept informed, "as the other requirements of filing as outlined in Section 494.043, Florida Statutes, are met." Based upon the foregoing, claimants have filed a claim against the Fund with respect to APT/Schleusener.
IIa. On June 27, 1986, the Department received a Complaint in the Circuit Court of the 17th Judicial Circuit, Case No. 86-11072 CY, against the Estate of Ernest Schleusener, Doretta Lee Caldwell, personal representative, Lee Caldwell, Harry A. Wright, and Wilma Sprague. Said Complaint was filed on May 1, 1986, and cites violations of Chapter 494, Florida Statutes. Thereafter, on July 22, 1986, the Department received by certified mail a letter which stated in part, "We . . . have filed a lawsuit against APT MORTGAGE CORPORATION, and BEVERLY BACKHOFF dated June 20, 1986, and filed in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida." Attached to said letter are Complaints against APT, Case No. 86-15853 CB and Beverly Backhoff, Case No. 86-15856 CH. Said Complaints allege violations of Chapter 494, Florida Statutes.
On August 1, 1986, the Department received by certified mail a letter which stated that a lawsuit had been filed in the Circuit Court of the 17th Judicial Circuit, Case No. 86-11072 CY on May 1, 1986. Said litigation was against the Estate of Ernest Schleusener, Doretta Lee Caldwell, Lee Caldwell, Harry A. Wright, and Wilma Sprague. Accompanying said letter are Proof of Claims filed in the United States Bankruptcy Court on July 29, 1986, with regard to Doretta Lee Caldwell, Case No. 85-01060-BKC-SMW and APT, Case No. 84-01247- BKC-JAG, in the amount of $50,000.
On September 2, 1986, the Department received a letter from M. Ross Shulmister, attorney with Shulmister and Conrad of Ft. Lauderdale, Florida, on behalf of Charles and Mary Schlaugat stating that an Amended Complaint had been filed against APT. Attached is a copy of the Amended Complaint in the Circuit Court of the 17th Judicial Circuit, Case No. 86-15853 CB, which alleges violations of Section 494.042(2), Florida Statutes.
Based upon the foregoing, in addition to having filed a claim against the Fund with respect to APT/Schleusener, claimants have filed claims with respect to Lee Caldwell, Wilma S. Sprague, Beverly Backhoff, and Harry A. Wright.
IIIa. On October 14, 1986, the Department received by certified mail an Amended Complaint against APT in Case No. 86-15853 CB, which was filed on August 29, 1986. On March 23, 1987, the Department received by certified mail a recorded Final Declaratory Judgment in Case No. 86-15853 CB against APT in the principle amount of $50,000 plus 18 percent interest from January 18, 1984.
On March 16, 1987, the Department received an Amended Complaint against Backhoff in Case No. 86-15856 CH.
On March 16, 1987, the Department received an Amended Complaint against Schleusener, Caldwell, Wright, and Sprague in Case No. 86-11072 CY.
Hebl Claim. I. On April 4, 1984, the Department received a letter by certified mail from James and Gladys Hebl seeking to recover against APT from the Fund. Based upon the foregoing, claimants have filed a claim against the Fund with respect to APT/Schleusener.
IIa. On June 27, 1986, the Department received a Complaint in the Circuit Court, of the 17th Judicial Circuit, Case No. 86-11072 CY, against the Estate of Ernest Schleusener, Doretta Lee Caldwell, personal representative, Lee Caldwell, Harry A. Wright, and Wilma Sprague. Said Complaint was filed on May 1, 1986, and cites violations of Chapter 494, Florida Statutes. Thereafter, on August 1, 1986, the Department received by certified mail a letter which stated that a lawsuit had been filed against Doretta Lee Caldwell, Lee Caldwell, Harry A. Wright, and Wilma Sprague in the Circuit Court of the 17th Judicial Circuit, Case No. 86-11072 CY on May 1, 1986. Accompanying said letter are Proof of Claims filed in the United States Bankruptcy Court on July 29, 1986, with regard to Doretta Lee Caldwell, Case No. 85-01060-BKC-SMW and APT, Case No. 84-01247- BKC-JAG, in the amount of $10,000.
On September 2, 1986, the Department received a letter from M. Ross Shulmister, attorney with Shulmister and Conrad of Ft. Lauderdale, Florida, on behalf of James and Gladys Hebl stating that an Amended Complaint had been filed against APT. Attached thereto is a copy of the Amended Complaint in the Circuit Court of the 17th Judicial Circuit, Case No. 86-15853 CB, which alleges violations of Section 494.042(2), Florida Statutes.
Based upon the foregoing, in addition to having filed a claim against the Fund with respect to APT/Schleusener, claimants have filed claims with respect to Lee Caldwell, Wilma S. Sprague, and Harry A. Wright.
III. On October 14, 1986, the Department received by certified mail an Amended Complaint against APT in Case No. 86-15853 CB, which was filed on August 29, 1986. On March 23, 1987, the Department received by certified mail a recorded Final Judgment in Case No. 86-15853 CB against APT in the principle amount of $10,000 plus interest at 18 percent from December 29, 1983.
Holdheim Claim. Ia. On April 12, 1984, the Department received a letter by certified mail from Arthur M. Wolff, attorney with Wolf and Gora of Ft. Lauderdale, Florida, on behalf of Evelyn M. Holdheim, making a "Claim against APT Mortgage Company, the decedent Ernest Charles Schleusener and broker Lee Caldwell and broker Wright, all associated with APT Mortgage Company." Based upon the foregoing, claimant has filed a claim against the Fund with respect to APT/Schleusener, Lee Caldwell, Harry A. Wright and Wilma Sprague. Accompanying said letter is a Complaint in Foreclosure in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Case No. 84-7037 CV, against Ernest Schleusener, Deceased, by and through his Estate and personal
representative, Doretta Lee Caldwell and Lee Caldwell. The Clerk of the Court has confirmed that said Complaint was filed on March 29, 1984. This Complaint was subsequently amended and alleges in part that on April 11, 1983, defendants Ernest Schleusener and Lee Caldwell executed a note and mortgage to Ms. Holdheim on a condominium that did not exist thereby committing fraud, and that payments which are due are in default. Chapter 494, Florida Statutes, is not referred to in the Amended Complaint.
b. On June 25, 1984, the Department received a copy of an Amended Final Judgment in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, Case No. 84-09806 CG, against APT, in the principle amount of
$25,000, based on violations of Section 494.42(2), Florida Statutes. As the foregoing different case numbers reveal, the Amended Final Judgment was not entered pursuant to the Complaint in Foreclosure. The letter by Mr. Wolff dated June 18, 1984, states that Ms. Holdheim still had pending actions against the Estate of Ernest Schleusener and Lee Caldwell in Case No. 84-7037 CV. Subsequently, on July 27, 1984, the Department received a Proof of Claim by Ms. Holdheim filed in the U.S. Bankruptcy Court regarding APT. The Department has also received a Writ of Execution in Case No. 84-09806 CG against APT which was returned unsatisfied on September 17, 1984, because APT had filed for bankruptcy, and an Affidavit of Reasonable Search dated October 4, 1984.
II. On July 24, 1986, Evelyn M. Holdheim assigned to the Department her interest in a Final Judgment entered on June 21, 1984, in the Circuit Court of the 17th Judicial Circuit, Case No. 84-09806 CG, which judgment has been recorded in book 11810, page 616, and book 11921, page 391 of the Public Records of Broward County. Said Assignment of Judgment has not as yet been recorded.
IIIa. On October 15, 1986, the Department received a recorded Final Judgment against Schleusener, Case No. 84-7037 CV, which has been assigned to the Department.
b. On April 27, 1987, the Department received a Withdrawal of Motion regarding Caldwell in the Bankruptcy Court wherein it is represented that it would be a useless effort to proceed against Caldwell in Case No. 84-7037 CV.
IV. A certified mail letter dated March 27, 1987, was received by the Department on April 3, 1987, from Arthur M. Wolff on behalf of Evelyn M. Holdheim with attached:
Proof of Claim by Evelyn M. Holdheim against Doretta Lee Caldwell,
Balloon Mortgage Note dated April 11, 1983,
Complaint in Foreclosure in the 17th Judicial Circuit, Case No. 84-7037 CV by Evelyn M. Holdheim against Ernest Schleusener and Doretta Lee Caldwell,
Mortgage Deed dated April 11, 1983,
Proof of Claim; Acceptance or Rejection of Plan by Evelyn M. Holdheim against Doretta Lee Caldwell, and
Letter dated March 31, 1987, by Arthur M. Wolff to Clerk of U.S. Bankruptcy Court, proposed Order and Motion.
Fuhrman and LaCotche Claim. I. On May 4, 1984, the Department received a letter by certified mail from Kenneth S. Rappaport, attorney and sole
practitioner from Boca Raton, Florida, which stated in part, "Pursuant to Florida Statutes 494.043(5), please be advised that this office representing Robert H. Fuhrman and Dorothy LaCotche will be instituting suit against APT Mortgage Corporation in excess of $59,000.00 for violation of Florida Statutes 494.042(2)." Based upon the foregoing, claimants have filed a claim against the Fund with respect to APT/Schleusener. On October 3, 1985, the Department received a copy of a Complaint in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, Case No. 84-15882, which was filed on July 12, 1984. Said Complaint alleges that "[o]n or about December 10, 1982, [Mr. Fuhrman and Ms. LaCotche], pursuant to representation[s] and statements made by [APT], invested $59,545.00 in two mortgages. . . ." However, it is claimed that said mortgages were on property that did not exist and, accordingly, Mr. Fuhrman and Ms. LaCotche have incurred damages. Said Complaint does not refer to Chapter 494, Florida Statutes.
On November 4, 1987, the Department received from attorney M. Ross Shulmister an Order of Dismissal with respect to Doretta Lee Caldwell, as Personal Representative of the Estate of Ernest Schleusener, in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, in Case No. 84-18347 CY, which had been entered on October 15, 1986.
Campbell Claim. I. On May 22, 1984, the Department received a letter by certified mail from Mark A. Greenberg, attorney with Richard J. Burton & Associates, P.A., of Miami, Florida, stating in part, "Please be advised that
L.E. Mervyn Campbell has filed a lawsuit against the Ernest Schleusener Estate, APT Mortgage Corporation and Lee Caldwell for the recovery of a fraudulent Mortgage which was delivered by defendants along with a fraudulent Note to plaintiff on or about August 15, 1983." Based upon the foregoing, claimant has filed a claim against the Fund with respect to APT/Schleusener and Lee Caldwell. By letter dated May 23, 1984, the Department acknowledged receipt of the notice. The Department has received a copy of a Complaint in the Circuit Court of the 17th Judicial Circuit, Case No. 84-11362 DF against the Estate of Ernest Schleusener, APT, and Lee Caldwell. The Clerk of the Court has confirmed that said complaint was filed on May 18, 1984, and that the case number of this cause is now 84-11362 CO. On February 24, 1986, the Department received a copy of an Amended Complaint from Stephen F. Kessler, attorney and sole practitioner from Miami, Florida, against Lee Caldwell, individually and as Personal Representative of the Estate of Ernest Schleusener. Said Amended Complaint alleges that "[u]nder date of August 15, 1983, the decedent, Ernest Schleusener, and the codefendant, Lee Caldwell, made and executed a promissory note in favor of [Mr. Campbell which] was secured by a mortgage [and that t]here is presently due and owing . the sum of $24,987.12, on which no payments have been made since early 1984 or late 1983." The Amended Complaint requests that a finding be made that Chapter 494.042, Florida Statutes, has been violated.
IIa. On August 8, 1986, the Department received a Partial Final Judgment as to Lee Caldwell, Defendant, entered on August 4, 1986, in the Circuit Court of the 17th Judicial Circuit, Case No. 84-11362 DF. Said Judgment specifically refers to Section 494.042(2), Florida Statutes, and awards claimant the principle amount of $24,987.12.
On September 8, 1986, the Department received by certified mail a copy of an Amended Complaint in the Circuit Court of the 17th Judicial Circuit, Case No. 86-10964 CK, by claimant against Beverly P. Backhoff. Said Amended Complaint alleges that Claimant through false representations was induced to
purchase a $25,000 mortgage, which mortgage was not in fact legitimate. The Amended Complaint was served on September 2, 1986, and does not refer to Chapter 494, Florida Statutes.
Based upon the foregoing, in addition to having filed a claim against the Fund with respect to APT/Schleusener and Lee Caldwell, claimant has filed a claim with respect to Beverly Backhoff.
On March 30, 1987, the Department received by certified mail:
A Proof of Claim regarding Caldwell in the Federal Bankruptcy Court, Case No. 85-01060, and a Partial Final Judgment against Caldwell in Case No. 86- 11362 DF, and
A Proof of Claim against APT in the Federal Bankruptcy Court, Case No. 84-01247.
Ferdinand Claim. I. On May 24, 1984, the Department received a letter by certified mail from Mark A. Greenberg, attorney with Richard J. Burton & Associates, P.A., of Miami, Florida, stating in part, "Please be advised that Cecil Ferdinand has filed a lawsuit against Lee Caldwell, APT Mortgage Corporation and [the] Schleusener Estate, for the recovery of fraudulent mortgages which were delivered by the defendant along with fraudulent Notes to the Plaintiff on or about April 1983." Based upon the foregoing, claimant has filed a claim against the Fund with respect to APT/Schleusener and Lee Caldwell. Accompanying said letter is a Complaint in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Case No. 84-11149 CO, against the Estate of Ernest Schleusener, Lee Caldwell and APT. The Clerk of the Court has confirmed that said Complaint was filed on May 16, 1984. By letter dated May 24, 1984, the Department acknowledged receipt of the above- noted letter and requested to be informed when the other statutory requirements had been met. On February 13, 1986, the Department received a copy of an Amended Complaint from Stephen F. Kessler, attorney and sole practitioner from Miami, Florida, against Lee Caldwell, individually and as Personal Representative of the Estate of Ernest Schleusener. Said Amended Complaint alleges that "[u]nder date of April 20, 1983, the decedent, Ernest Schleusener, and the codefendant, Lee Caldwell, made and executed two promissory notes in favor of [Mr. Ferdinand which] were secured by mortgages [and that t]here is presently due and owing . . . the respective sums of $24,987.11 and $49,952, on which no payments have been made since early 1984." The Amended Complaint requests that a finding be made that Chapter 494.042, Florida Statutes, has been violated.
IIa. On August 8, 1986, the Department received a Partial Final Judgment as to Doretta Lee Caldwell a/k/a Lee Caldwell entered on August 4, 1986, in the Circuit Court of the 17th Judicial Circuit, Case No. 84-11149 CO. Said Judgment specifically refers to Section 494.042(2), Florida Statutes, and awards claimant the principle amounts of $24,986.11 and $49,952.20.
On September 8, 1986, the Department received by certified mail a copy of an Amended Complaint in the Circuit Court of the 17th Judicial Circuit, Case No. 86-10964 CK, by claimant against Beverly P. Backhoff. Said Amended Complaint alleges that claimant through false representations was induced to purchase a $50,000 mortgage and a $25,000 mortgage, which mortgages were not in fact legitimate. The Amended Complaint was served on September 2, 1986, and does not refer to Chapter 494, Florida Statutes.
Based upon the foregoing, in addition to having filed a claim against the Fund with respect to APT/Schleusener and Lee Caldwell, claimant has filed a claim with respect to Beverly Backhoff.
III. On March 30, 1987, the Department received by certified mail:
A Proof of Claim regarding Caldwell in the Federal Bankruptcy Court, Case No. 85-01060, and a Partial Final Judgment against Caldwell in Case No. 84- 11149 CO, and
A Proof of Claim against APT in the Federal Bankruptcy Court, Case No. 84-01247.
Stuart, Kutik and Marques Claim. I. On June 4, 1984, the Department received a letter by certified mail from Ronald Stuart a/k/a Ronald Kutik on his own behalf and on the behalf of his parents Harry and Seena Kutik and his friends Lucille and Agness Marques giving notice of an action being instituted against Harry A. Wright, the Estate of Ernest Schleusener, Wilma Sprague and Lee Caldwell of APT. Mr. Stuart states that his attorney in that suit is James Eddy, 950 N. Federal Highway, Pompano Beach, Florida. Based upon the foregoing, claimants have filed a claim against the Fund with respect to APT/Schleusener, Harry A. Wright, Wilma Sprague, and Lee Caldwell.
IIa. On November 4, 1987, the Department received from attorney M. Ross Shulmister a Motion, Notice and Judgement of Dismissal for lack of prosecution with respect to Ronald Stuart, in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, in Case No. 84-9435 CU, which had been entered on April 10, 1986.
On November 4, 1987, the Department received from attorney M. Ross Shulmister a Motion, Notice and Judgement of Dismissal for lack of prosecution with respect to Harry Kutik and Seena Kutik, his wife, in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, in Case No 84- 26869 CX, which had been entered on January 15, 1986.
On November 4, 1987, the Department received from attorney M. Ross Shulmister a Motion, Notice and Judgement of Dismissal for lack of prosecution with respect to Lucille A. Marques and Agness Marques, in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, in Case No. 84- 26898 CO, which had been entered on May 15, 1986.
Paine Claim. I. On September 10, 1984, the Department received a letter by certified mail from E.E. Jordan, attorney and sole practitioner from Ft. Lauderdale, Florida, which stated:
The undersigned, on behalf of Mr. Dale A. Paine, does hereby put you on notice, in accordance with FSA 494.043, for the recovery of losses, resulting from fraudulent notes and mortgages which were made and executed by APT Mortgage Corporation, CHARM Mortgage Corporation and the Defendants listed in the enclosed Complaint, all of whom are licensed mortgage brokers by the State of Florida and covered the Mortgage Brokerage Guaranty Fund.
Provided to the Department on August 29, 1984, is a Complaint in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, Case No. 84-18235 CX against the Estate of Ernest Schleusener, deceased, Lee Caldwell, Harry A. Wright, Beverly Backhoff, and Wilma Sprague. Based upon the foregoing, claimant has filed a claim against the Fund with respect to APT/Schleusener, Lee Caldwell, Harry A. Wright, Beverly Backhoff, and Wilma Sprague. Said Complaint alleges that Mr. Paine invested money with the defendants who knowingly misrepresented "that the said investments would be first mortgages and did guarantee a return thereon of interest at a rate of eighteen (18%) percent per annum." Furthermore, the Complaint states that no payments had been made on the notes and mortgages since February 1, 1984. The Clerk of the Court has confirmed that said Complaint was filed on August 8, 1984. Said Complaint does not refer to Chapter 494, Florida Statutes.
On November 4, 1987, the Department received from attorney M. Ross Shulmister a Motion for Summary Final Judgment dated October 13, 1987, against Caldwell, Wright, Backhoff and Sprague in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Case No. 84-18235 CX. Said Motion indicates that a settlement in the amount of $11,451.62 had been entered into with the Schleusener Estate.
On December 30, 1987, the Department received a copy of a Summary Final Judgment entered on December 14, 1987, in the 17th Judicial Circuit in and for Broward County, Florida, Case No. 84-18235 CX against Caldwell, Wright, Backhoff, and Sprague in the principal amount of 181,173.88. 2/
Schiavone et al. Claim. I. On March 22, 1985, the Department received a letter by certified mail from Fred C. Bamman, III, attorney with Bamman and Bowman of Pompano Beach, Florida, which stated in part:
On behalf of my clients, Domonic Schiavone, Rudolf Schiavone, Elenore Paul, Rose Marie Miller, Joy Anne Barron and Lucille Margerite, a claim is herewith submitted in respect to monetary damages suffered by my clients as a result of their pur- chase and/or investment as a result of solicita- tions of APT Mortgage Corporation located 1935 East Atlantic Boulevard, Pompano Beach, Florida and/or Charme Properties, Inc., and/or Ernest Schleusener, individually, and/or as Chairman of the Board of Apt Mortgage Corporation, and/or Wilma S. Sprague, individually and/or as Treasurer of Apt Mortgage Corporation, and/or Harry A. Wright, individually, and/or as agent of Apt Mortgage Corporation, and/or other and unknown representatives of Apt Mortgage Corporation and/or Robert C. Beiter, individually and/or for Pinewood International and/or Charme Properties, Inc., all or some of whom were at times material to the monetary damages suffered by my clients, a mortgage broker or mortgage solicitor who was licensed under Chapter 494, Florida Stat- utes. . . .
My clients are, in accordance with Subsection (5) of Section 494.043 herewith filing claim and giving notice via certified mail that action is being
instituted (by way of crossclaim) in an effort to obtain final judgment from a court of competent jurisdiction in the State of Florida, and thereupon will proceed to effect compliance with Subsection 2, 3, and 4 of Section 494.043, Florida Statutes (the provisions of Subsection 6 having been met by virtue of date of occurrence herewith applicable).
Based upon the foregoing, claimants have filed a claim against the Fund with respect to APT/Schleusener and all associated therewith. On April 14, 1986, the Department received by certified mail from Richard D. LaSala, attorney with Fred
C. Bamman, III, a Complaint in the 17th Judicial Circuit against the Estate of Ernest Schleusener, Doretta Lee Caldwell, Personal Representative, Lee Caldwell, Harry A. Wright, and Wilma Sprague. Said Complaint alleges violations of Chapter 494, Florida Statutes.
II. On November 4, 1987, the Department received by certified mail from attorney M. Ross Shulmister a Renotice of Taking Deposition dated August 25, 1987, of deponents Lee Caldwell, Harry Wright, and Wilma Sprague, in the 17th Judicial Circuit in and for Broward County, Florida, Case No. 86-009064 CN. Also received on said date is a Partial Summary Judgment in favor of the Estate of Ernest Schleusener entered on September 5, 1986, in said court action.
Zinni Claim. I. On April 8, 1985, the Department received a letter by certified mail from Bart T. Heffernan, attorney with Sherman and Rayson, of Ft. Lauderdale, Florida, which stated in part:
This law firm represents Frank and Ann Zinni in their claims against Apt Mortgage Corporation, Estate of Ernest Schleusener, Lee Caldwell, Harry
Wright and Robert C. Beiter.
This letter shall serve as notification to the department that Frank and Ann Zinni do hereby make a claim from the Mortgage Brokerage Guaranty Fund pursuant to Florida Statutes 494.043. The acts for which recovery is sought occurred after September 1, 1977.
Based upon the foregoing, claimants have filed a claim against the Fund with respect to APT/Schleusener, Lee Caldwell and Harry A. Wright. By letter dated April 9, 1985, the Department acknowledged receipt of said letter and requested to be kept informed "as the other requirements of Section 494.043, Florida Statutes, are met." On November 21, 1985, the Department received a letter from Mr. Heffernan indicating that he had received a summary final judgment against two defendants and has a case set for trial against a third defendant.
II. On June 30, 1986, the Department received a copy of a Final Summary Judgment entered in the Circuit Court of the 17th Judicial Circuit Court, Case No. 84-8669 CG, on June 24, 1986, against the Estate of Ernest Schleusener, Lee Caldwell and Harry A. Wright. Said Final Summary Judgment concludes that Lee Caldwell and Harry A. Wright failed to disburse Funds in accordance with their agreements in violation of Section 494.042, Florida Statutes. The Court awarded claimants the principle amount of $27,028.74.
IIIa. The Complaint against Schleusener, Caldwell, and Wright, Case No.
84-8669 CG, was filed on April 18, 1984. At the administrative hearing held in
this cause, the Zinni Claim submitted a Proof of Claim against APT and a recorded Final Summary Judgment against Caldwell and Wright in Case No. 84-8669 CG.
b. On March 30, and April 2, 1987, the Department received by certified mail a Proof of Claim against Apt in the Federal Bankruptcy Court, Case No. 84- 01247.
On October 12, 1987, the Department received by certified mail a Proof of Claim filed on October 7, 1987, in the United States Bankruptcy Court against Caldwell in the amount of $33,449.62; an unrecorded Assignment which fails to identify, within said assignment, the judgments being assigned to the Department; and Affidavit which states, in part, that Claimants have made all reasonable searches and inquires for the assets of Caldwell and Wright.
Although said Affidavit also states that a Writ of Execution was issued, there is no indication that it has been returned unsatisfied.
On January 7, 1988, the Department received a Writ of Execution against Caldwell and Wright, which had been returned unsatisfied on December 28, 1987.
Turner Claim. On January 8, 1986, the Department received a letter by certified mail from E.E. Jordan, attorney and sole practitioner from Ft. Lauderdale, Florida, which stated:
The undersigned, on behalf of Sanders Turner and Maureen Turner, does hereby put you on notice, in accordance with FSA 494.043, for the recovery of losses, resulting from fraudulent notes and mort- gages which were made and executed by APT Mortgage Corporation, CHARM Mortgage Corporation, and the above-named individuals, all of whom are licensed mortgage brokers licensed by the State of Florida and covered by the Mortgage Brokerage Guaranty Fund.
The above-named individuals were the Estate of Ernest Schleusener, Lee Caldwell, Harry A. Wright, Beverly Backhoff and Wilma Sprague. Based upon the foregoing, claimants have filed a claim against the Fund with respect to APT/Schleusener, Lee Caldwell, Harry A. Wright, Beverly Backhoff, and Wilma Sprague.
Accompanying said letter is a Complaint in the Circuit Court of the 17th Judicial County in and for Broward County, Florida, Case No. 85-28746 CM, against APT, Lee Caldwell, Harry A. Wright and Wilma Sprague. Said Complaint alleges that the Turners invested money with the defendants who knowingly misrepresented "that the said investments would be first mortgages and did guarantee a return thereon of interest at the rate of eighteen (18%) percent per annum." Furthermore, the Complaint states that no payments had been made. Said Complaint does allege violations of Section 494.042(2), Florida Statutes, and the Clerk of the Court has confirmed that it was filed on November 21, 1985.
Mitchell Claim. On January 29, 1986, the Department received a letter by certified mail from Fred C. Bamman, III, attorney with Bamman and Bowman, of Pompano Beach, Florida, which stated in part:
In behalf of my clients, Charles C. Mitchell and Rita Mitchell, his wife, a claim is herewith submitted in respect to monetary damages suffered by my clients as a result of their purchase and/or
investment as a result of solicitations of APT Mortgage Corporation located 1935 East Atlantic Boulevard, Pompano Beach, Florida and/or Theodore
H. Lawlis, individually, and/or as President of Charme Properties, Inc., and/or Ernest Schleusener, individually, and/or as Chairman of the Board for APT Mortgage Corporation, and/or Wilma S. Sprague, individually, and/or Treasurer of APT Mortgage Corporation, and/or Harry A. Wright, individually, and/or as agent of APT Mortgage Corporation, and/or other and unknown representatives of APT Mortgage Corporation and/or Charme Properties, Inc., all or some of whom were at times material to the monetary damages suffered by my clients, a mortgage broker or mortgage solicitor who was licensed under Chapter 494, Florida Statutes. . .
My Clients are, in accordance with Subsection (5) of Section 494.043 herewith filing claim and giving notice via certified mail that action is being instituted (by way of crossclaim) in an effort to obtain final judgment from a court of competent jurisdiction in the State of Florida, and thereupon will proceed to effect compliance with Subsections 2, 3, and 4 of Section 494.043, Florida Statutes (the provisions of Subsection 6 having been met by virtue of date of occurrence herewith applicable).
Based upon the foregoing, claimants have filed a claim against the Fund with respect to APT/Schleusener and all those associated therewith.
Anglada Claim. Ia. On July 3, 1986, the Department received a letter by certified mail from Albert F. Tellechea, attorney with Ambrette and Tellechea, P.A., of Orlando, Florida, stating in part:
In reviewing our file in the above captioned case, we noted that on July 15th, 1985, we sent a notice as required by Chapter 494 of the Florida Statutes, said notice was mailed by certified letter with return receipt requested. Our file failed to reflect a return receipt card returned by the U.S. mail service. Therefore, and in a exer- cise of caution, we are hereby giving you notice for the second time that Mr. Jose Anglada and Isuara Anglada have instituted a civil action against Wilma S. Sprague, a licensed mortgage broker for making false promises likely to influ- ence, persuade, or induce or pursuing a course of misrepresentation or false promises through agents,
S.S.A. 494.042(2)(b) and for misrepresentation of any of the material particulars, regarding a transaction to which he is a party and or injury to another party thereto. S.S.A. 494.042(2)(c) before the United States District Court for the Southern District of Florida, Fort Lauderdale Division.
Said action bears Civil Case No.: 85-6531-CIV-PAINE
and was instituted on July 15, 1985. A copy of the notice sent to you on July 15th, 1985, is attached hereto for your convenience and perusal.
On August 4, 1986, the Department received a Complaint in the United States District Court for the Southern District of Florida, Case No. 85-6531- Civ-Paine, by claimants against Wilma Sprague and Harry Wright. The Complaint alleges that in exchange for $50,000, claimants were given two mortgages, which were worthless, because they were preceded by prior mortgages which exceeded the value of the property in question. Chapter 494, Florida Statutes, was not referred to in the Complaint. Also on August 4, 1986, the Department received a Judgment in the United States District Court for the Southern District of Florida, Case No. 85-6531-Civ-Paine, entered on July 7, 1986, against Harry Wright and Wilma Sprague in the amount of $49,042 as actual and compensatory damages. Chapter 494.042, Florida Statutes, was not referred to in said Judgment.
On August 18, 1986, the Department received a letter by certified mail from Mr. Tellachea which stated in part that claimants had obtained a judgment against Harry Wright. On said date and by regular mail, the Department received a Proof of Claim in the United States Bankruptcy Court regarding APT Mortgage Corporation, Case No. 84-01247-BKC-JAG in the amount of $48,246.00 dated September 9, 1984.
On September 8, 1986, the Department received Writ of Executions in Case No. 85-6531-Civ-Paine against Wilma Sprague and Harry A. Wright, which were returned Nolla Bona on September 3, 1986, Interrogatories in Aid of Enforcement of Judgment, which apparently have not been answered, and Certificates of Non- Attendance at the Depositions of Wilma Sprague and Harry A. Wright dated September 2, 1986.
On October 17, 1986, the Department received a letter by certified mail from Mr. Tellechea indicating that the judgment against Harry A. Wright and Wilma Sprague had been recorded on October 9, 1986, in Broward County, Florida. A copy of said recorded judgment has not been provided to the Department.
Based upon the foregoing, a claim against the Fund has been filed with respect to APT/Schleusener, Wilma S. Sprague, and Harry A. Wright.
On August 18, 1986, the Department received by regular mail a Proof of Claim in the Bankruptcy Court against Debtor APT, Case No. 84-01247, dated September 9, 1984.
On July 29, 1987, the Eleventh Circuit affirmed the decision of the United States District Court in Anglada v. Sprague, 822 F.2d 1035 (11th Cir. 1987) (per curiam), thus finalizing claimant's judgment.
Smith Claim. Ia. On September 19, 1986, the Department received a letter by Steven E. Moody, attorney with Moody and Jones, of Plantation, Florida, on behalf of Charlie Smith. Accompanying said letter was a Motion to Amend Complaint by adding Additional Count in the Circuit Court of the 17th Judicial Circuit, Case No. 84-14385 CB, wherein Doretta Lee Caldwell, as personal representative of the Estate of Ernest Schleusener, Lee Caldwell and Harry Wright, are listed as defendants. Thereafter, on October 6, 1986, the Department received by certified mail a letter by Mr. Moody which stated in
part, "Please accept this letter as a claim against the Mortgage Bankers Guaranty Fund on behalf of my client, Charlie Smith, against APT Mortgage Corpora- tion, Lee Caldwell a/k/a Doretta Lee Caldwell, and Harry Wright a/k/a Harry A. Wright."
On October 6, 1986, the Department received a letter by certified mail from Mr. Moody which stated:
This is a follow up to my letter to you of Septem- be 17, 1986. Please find enclosed a copy of the plaintiff's motion to add Apt Mortgage Corporation as a party defendant and to amend the complaint by adding an additional Count alleging violations of Florida Statutes 494.042(2).
Please accept this letter as a claim against the Mortgage Brokers Guaranty Fund on behalf of my client, Charlie Smith, against Apt Mortgage Corpo- ration, Lee Caldwell a/k/a Doretta Lee Caldwell, and Harry Wright a/k/a Harry A. Wright. My client will attempt to comply with the conditions of Section 494.043 for recovery from the Mortgage Brokerage Guaranty Fund.
Also enclosed pursuant to the Statute is a copy of the proof of claim filed against Apt Mortgage Corp. in bankruptcy.
Accompanying said letter is a Motion to Add Party Defendant and to Amend Complaint by Additional Counts in the Circuit Court of the 17th Judicial Circuit served on September 25, 1986. Also enclosed is a Proof of Claim in the United States Bankruptcy Court regarding APT, Case No. 84-01247-BKC-JAG in the principle amount of $15,000 and dated August 28, 1984.
On October 31, 1986, the Department received by certified mail a copy of a suit for Declaratory Judgment and Damages against Caldwell, Wright, Sprague, and Apt.
Based upon the foregoing, a claim against the Fund has been filed with respect to APT/Schleusener, Lee Caldwell, Wilma Sprague and Harry A. Wright.
II. On November 5, 1986, the Department received by certified mail a copy of a Complaint against Caldwell, Sprague, Wright, and APT.
CONCLUSIONS OF LAW
18a. First to be resolved is whether the 1985 and 1986 amendments to Chapter 484, Florida Statutes, pertaining to the Fund apply in whole or in part to the case at bar. Although it is settled that "[s]ubstantive statutes are prospective only, absent a clearly expressed legislative intent to the contrary," Klase v. Wendy's Old Fashioned Hamburgers, 466 So.2d 441, 442 (Fla. 1st DCA 1985), "statutes relating to remedies or procedure . . . operate retrospectively in the sense that all pending proceedings . . . are determined under the law in effect at the time of the decision rather than that in effect when the cause of action arose or some earlier time." Fogg v. Southeast Bank, N.A., 473 So.2d 1352, 1353 (Fla. 4th DCA 1985); see also Peeples v. Pilcher, 423 So.2d 907 (Fla. 1982); Rothermel v. Florida Parole and Probation Commission, 441
So.2d 663 (Fla. 1st DCA 1983). However, vested rights may not be divested or destroyed. See 10 Fla. Jur., Constitutional Laws 300 (1979).
With regard to the 1985 amendments, the increased benefits provision provides for additional rights for payment from the Fund for causes of action which arose after October 1, 1985. This date is a "clear expression" of legislative intent that the increased benefits do not apply retrospectively. Accordingly, the increased benefits do not appear to apply to the case at bar. See also paragraph 21 herein (which discusses when a cause of action accrues) . In contrast, the waiver of the timely giving of notice provision and the clause stating that a writ of execution need not be issued and that all reasonable searches need not be made if the licensee has filed for bankruptcy are procedural in nature. Accordingly, under general principals of law, these statutory provisions should be applied to these ongoing proceedings, particularly because, unlike with the increased benefits provision, the legislature did not specify a date said requirements were to take effect.
Similarly, with regard to the 1986 amendments, they provide clarification of existing law and relate to the procedure whereby a claim is to be perfected. Accordingly, said amendments apply to the case at bar except with regard to claims that were perfected prior to September 1, 1986, the effective date of the 1986 amendments.
Having decided that, except with regard to the increased benefits, the 1985 and 1986 amendments apply to the case at bar, the requirements for perfecting a claim to the Fund may be summarized as follows:
Section 494.042(2), Florida Statutes, provides that the Fund shall be disbursed upon approval by the Division to any party to a mortgage financing transaction who has been adjudged by a Florida court of competent jurisdiction to have suffered money damages as a result of any violation of this Chapter committed by a licensee or registrant.
Section 494.043(1), Florida Statutes, states that any person who was a party to a mortgage financing transaction shall be eligible to seek recovery from the Fund if: a) the person has recorded, see Section 28.222, Florida Statutes, a final Judgment, see McCuiston v. State, 507 So.2d 1185, 1186 (Fla. 2d DCA 1987); Whitley v. Maryland Casualty Co., 376 So.2d 476, 477 (Fla. 1st DOA 1979), issued by a Florida court of competent jurisdiction in any action wherein the cause of action was based on Section 494.042(2), Florida Statutes; b) the person has caused a writ of execution to be issued upon such judgment, and said writ has been returned unsatisfied because there was no property liable to be levied upon or that the amount realized on the sale of the property was insufficient to satisfy the judgment; c) the person has made all reasonable searches for property of the judgment debtor and that no property was found or that property found was insufficient to satisfy the judgment; d) the person has applied any amounts recovered from the judgement debtor, or any other sources, to the damages awarded by the court; e) the person, at the time the action was instituted, gave notice and provided a copy of the Complaint to the Division by certified mail, however, the requirement of a timely giving of notice may be waived by the Department upon a showing of good cause; and f) the act for which recovery is sought occurred on or after September 1, 1977, although for causes of action arising on or after October 1, 1985, increased benefits may be recovered pursuant to the amendments to Section 494.044, Florida Statutes, which go into effect on said date. Finally, Section 494.043(2), Florida Statutes, states that the requirements of Subsection (1)(a)-(e) are not applicable if the licensee or registrant upon which the claim is sought has filed for bankruptcy
or has been adjudicated bankrupt; however, in such event the claimant shall file a proof of claim in the bankruptcy proceedings and shall notify the Department by certified mail of the claim by enclosing a copy of the proof of claim and all supporting documents.
Section 494.044(1), Florida Statutes, states, in part, that any person who meets all of the conditions prescribed in Section 494.043, Florida Statutes, may apply to the Department for payment from the Fund. Additionally, payments from the Fund may be made only to the extent and amount reflected in the judgment as being actual or compensatory damages.
Based upon the foregoing Findings of Fact, the Department concludes that it received the first notice of an action against Wilma Sprague at the time the action was instituted on September 10, 1984, as previously noted in paragraph 11. Accordingly, the two-year period mandated by Section 494.044(1), Florida Statutes, as against Wilma Sprague expired on September 9, 1986.
Also at issue is whether the "cause of action" of the claimants arose on or after October 1, 1985. This must be resolved to determine whether the increased benefits provided for in Section 494.044, Florida Statutes, applies to the case at bar. However, from reviewing the pleadings in the Department's file, it appears that the cause of action against the licensee accrued before said date, i.e., the contract breaches undoubtedly occurred, and the alleged fraud should have been discovered, well in advance of the 1985 amendments effective October 1, 1985. See generally 35 Fla. Jur. 2d, Limitations and Laches ss. 39-57 (1982) (which discusses when a cause of action accrues). This being the case, the Department finds that the increased benefits do not apply to the case at bar.
22a. There is also concern that some of the claimants are attempting to recover from the Fund with respect to the licensee and also from other defendants. Of primary concern is that each claimant should not be allowed to recover amounts from the Fund greater than the actual or compensatory damages that have been incurred. Cf. Roberts v. Rockwell International Corp., 462 So.2d 502, 505 (Fla. 2d DCA 1984) (quoting Weaver v. Stone, 212 So.2d 80, 81 (Fla. 4th DCA 1968)) (which stated that "[s]atisfaction of a judgment against one of several persons jointly and severally liable discharges the liability of the others"). Moreover, Section 494.043(1)(d), Florida Statutes, requires a claimant to apply any amounts recovered from the judgment debtor, or from any other source, to the damages awarded by the Court. Accordingly, when it appears possible that a claimant may recover from the licensee and from other defendants, the Department will not pay said claimant from the Fund until said suits have been finally concluded.
b. Furthermore, some of the claimants may be attempting to recover twice from the Fund due to the alleged actions of APT and certain brokers associated with APT, although the respective injuries appear to be based on a single set of facts. Accordingly, the question arises as to whether it is permissible to make two or more Fund awards based on claims against two or more licensees based upon the same facts, should the claimants technically comply with Chapter 494, Florida Statutes. It is noted that complaints against licensees are generally made on the theory of an alleged contract breach or for fraud. While certainly only a party to a contract may breach it, it is arguable that more than one licensee could make fraudulent representations to an investor to induce the investment. By way of analogy, while "[i]ndispensable parties are necessary parties so essential to a suit that no final decision can be rendered without their joinder," Hertz Corp. v. Piccolo, 453 So.2d 12, 14 n.3 (Fla. 1984), a
plaintiff has the "right to sue any one or all of the joint tort-feasors whose negligent acts or omissions united and produced his injuries." Dulman v.
Seaboard Coast Line Railroad Co., 308 So.2d 53, 54 (Fla. 4th DCA 1975) (emphasis original). Based on the foregoing, while the remedial nature of the Fund supports the conclusion that the Department will pay claims against the Fund arising out of one cause of action against one or more licensee, said payments will be limited to $10,000 against one licensee. However, it should be emphasized that the total payments received by the claimants against any one or more licensee will in no event exceed the total amount of actual or compensatory damages incurred by the claimant.
23a. Also requiring resolution is whether a claimant must satisfy all of the requirements of Section 494.043, Florida Statutes, thereby perfecting his or her claim in order to take part in the "initial payment" provided for in Section 494.044, Florida Statutes, upon the expiration of the two-year period.
Alternatively, if said claim was not perfected upon the running of the two-year period, the statute could be interpreted as requiring that amounts should be set aside thereby allowing said claimant additional time to perfect his or her claim, in order to avoid a "race to the Department." On this issue, in a prior proceeding of similar nature conducted by the Department, the Hearing Officer stated in part on pages 8-9 of his Recommended Order in Division of Administrative Hearings, Case No. 86-1704, issued on November 13, 1986:
The first legal question raised by the facts of this case involve the method of payment of eligible claims set out in Section 494.044(1), Florida Statutes (1985). The parties concede and point out that the language of the statute does not make its meaning plain.
In one sentence, the statute provides:
"As to claims against any one mortgage broker or mortgage solicitor, payments shall be made to all persons meeting the requirements of Section 494.043 upon the expiration of 2 years from the date [of] the first notice." Standing alone, this conceivably could mean that all eligible claimants are to be paid and that no payments will be made during the 2 year waiting period. On the other hand, it could mean that only claimants eligible as of the expiration of the 2 years are entitled to be paid. The latter construction is more probable.
The next sentence says: "Persons who
give notice after 2 years from the date the first notice is received and who have not received payment as provided above may recover up to the remaining portion of any of the [$50,000, in this case] aggregate, with claims being paid in the order notice is received." In light of the more probable construction of the preceding sentence of the statute, the only logical construction of this sentence is that it creates only one class of claimants in addition to those entitled to payment by virtue of being eligible within the 2 year period: both those who did not even give notice within the 2 year period and those who gave notice
but did not perfect their claim under 494.043 within the 2 year period. In other words, this sentence should be read: "Persons who give notice after 2 years from the date the first notice is received and [persons] who [gave notice but] have not received payment as provided above. "
Otherwise, if the sentence is read to refer only to "[p]ersons who give notice after 2 years from the date the first notice is received," the next clause ("and who have not received payment as provided above") would be entirely superfluous in light of the more probable construction of the preceding sentence -- for "[p]ersons who give notice after 2 years from the date the first notice is received" could not have "received payment as provided above." In addition, if this sentence only refers to "[p]ersons who give notice after 2 years from the date the first notice is received," the statute would omit entirely any identification of the third class of claimants that would be created -- persons who give notice within the 2 year period but who "have not received payment as provided above" -- and any description of the method for payment to the third class of claimants.
Not all of the so-called rules of statu- tory interpretation are particularly helpful in construing a statute written in unfortunate lan- guage that does not make the statute's meaning plain. But the logic of one of them is compelling
-- namely, the rule that a statute should not be construed in a way that would lead to illogical or absurd results. Wakulla County v. Davis, 395 So.2d
540 (Fla. 1981); State ex rel. Register v. Safer,
368 So.2d 620 (Fla. 1st DCA 1979). That indisput- able rule supports the construction recommended in the preceding paragraph.
By Final Order entered December 18, 1986, the Department adopted the above- quoted conclusions of law as stated by the Hearing Officer. Accordingly, in order to take part in the initial payment, said claimants must have perfected their claim before the expiration of the two-year period.
24a. In paragraph 4 on pages 23-24 of the Recommended Order the Hearing Officer declined to render a ruling on whether a prima facie case of waiver or abandonment had been made with respect to some of the claimants herein. The Hearing Officer apparently concluded that because the Department had not rendered a ruling on said issue in its Notice of Intent, it was premature to address said issue in the Recommended Order. The Department respectfully disagrees.
The Notice of Intent stated that the Department intended to deny the applications for payment from the Fund and pay said claims in the order that the certified mail notices were filed with the Department. Notice of the Department's decision to grant or deny certain requests for payment from the Fund is all that is required. See Gulf Coast Health Services of Florida, Inc.,
v. Department of Health and Rehabilitative Services, 515 So.2d 1009 (Fla. 1st
DCA 1987). Therefore, that the Department did not anticipate and address all of the potential issues that might be raised during these proceedings in the Notice of Intent should not be a basis for declining to render a ruling. However, as the issue of whether a prima facie case has been made is a question of law, cf. Health Care and Retirement Corporation of American v. Department of Health and Rehabilitative Services, 516 So.2d 292, 296 (Fla. 1st DCA 1987); MacPherson v.
School Board of Monroe County, 505 So.2d 682, 684 (Fla. 3d DCA 1987), the Department may render a ruling despite the Hearing Officer's failure to do so. In deciding this issue the Department might be guided by the one-year period as set forth in Rule 1.420, Florida Rules of Civil Procedure, which pertains to a litigant's failure to prosecute. While the Division recognizes that the foregoing rule pertains to proceedings in a court of law, "procedural rules applicable in court may be applied to administrative proceedings in absence of mandatory language to a different effect in the creating statutes." 1 Fla. Jur. 2d, Administrative Laws s. 70, at 635 (1977) (footnote omitted). Accordingly, the waiver or abandonment issue pertains to those claimants who have failed to timely request a hearing and who have duly provided the Department with certified mail notice as required by Section 494.043, Florida Statutes. Those Claims are the Furhman and LaCotche Claim and the Turner Claim. However, there has been no demonstration that there has been a lack of record activity for at least one year in the circuit court. Accordingly, with respect to the Furhman and LaCotche Claim and the Turner Claim, a prima facie case of waiver or abandonment has not been demonstrated.
Schlaugat Claim. Based upon the foregoing Findings of Fact, particularly those findings contained in paragraph 4, with respect to Apt, claimant has satisfied the requirements of Sections 494.042(2) and 494.043(1)(f) and (2), Florida Statutes, as amended. Accordingly, said claim is approved at this time and shall be paid once claimant has duly filed with the Department the assignment required by Section 494.044(2), Florida Statutes, as amended, which should be substantially in the form of Exhibit A.
Hebl Claim. Based upon the foregoing Findings of Fact, particularly those findings contained in paragraph 5, with respect to Apt, claimant has satisfied the requirements of Sections 494.042(2) and 494.043(1)(f) and (2), Florida Statutes, as amended. Accordingly, said claim is approved at this time and shall be paid once claimant has duly filed with the Department the assignment required by Section 494.044(2), Florida Statutes, as amended, which should be substantially in the form of Exhibit A.
Holdheim Claim. Based upon the foregoing Findings of Fact, particularly those findings contained in paragraph 6, with respect to Apt, claimant has satisfied the requirements of Section 494.043, Florida Statutes (1985) . Accordingly, said claim is approved at this time and shall be paid once claimant has duly filed with the Department the assignment required by Section 494.044(2), Florida Statutes, as amended, which should be substantially in the form of Exhibit A.
Fuhrman and LaCotche Claim. Based upon the foregoing Findings of Fact, particularly those findings contained in paragraph 7, while it appears that claimant has satisfied the requirements of Section 494.043(1)(f), Florida Statutes, as amended, said claimant has not satisfied the requirements of Sections 494.042(2) and 494.043(2), Florida Statutes, as amended. Accordingly, said claim is denied at this time without prejudice and, once the statutory requirements have been met, shall be paid in the order of notices duly filed with the Department, up to the maximum amount permitted by law if funds are available, as required by Section 494.044, Florida Statutes, as amended.
Campbell Claim. Based upon the foregoing Findings of Fact, particularly those findings contained in paragraph 8, while it appears that claimant has satisfied the requirements of Section 494.043(1)(f) and (2), Florida Statutes, as amended, said claimant has not satisfied the requirements of Section 494.042(2), Florida Statutes, as amended. Accordingly, said claim is denied at this time without prejudice and, once the statutory requirements have been met, shall be paid in the order of notices duly filed with the Department, up to the maximum amount permitted by law if funds are available, as required by Section 494.044, Florida Statutes, as amended.
Ferdinand Claim. Based upon the foregoing Findings of Fact, particularly those findings contained in paragraph 9, while it appears that claimant has satisfied the requirements of Section 494.043(1)(f) and (2), Florida Statutes, as amended, said claimant has not satisfied the requirements of Section 494.042(2), Florida Statutes, as amended. Accordingly, said claim is denied at this time without prejudice and, once the statutory requirements have been met, shall be paid in the order of notices duly filed with the Department, up to the maximum amount permitted by law if funds are available, as required by section 494.044, Florida Statutes, as amended.
Stuart, Kutik and Marques Claim. Based upon the foregoing findings of Fact, particularly those findings contained in paragraph 10, claimant has failed to satisfy any of the provisions of Section 494.043, Florida Statutes, as amended. Accordingly, said claim is denied at this time without prejudice.
Paine Claim. Based upon the foregoing Findings of Fact, particularly those findings contained in paragraph 11, as claimant has settled with the Schleusener Estate, the Department denies said claim with prejudice as against the Schleusensr Estate.
Schiavone et al. Claim. Based upon the foregoing Findings of Fact, particularly the findings contained in paragraph 12, as a Partial Summary Judgement has been entered against claimant in favor of the Estate of Ernest Schleusener, the Department denies said claim with prejudice as against the Estate of Ernest Schleusener.
Zinni Claim. Based upon foregoing Findings of Fact, particularly those findings contained in paragraph 13:
With respect to Schleusener, while it appears that claimant has satisfied the requirements of section 494.041(1)(e) and (f), Florida Statutes, as amended, said claimant has not satisfied the requirements of Section 494.041(1), Florida Statutes, as amended, and
With respect to Apt, while it appears that claimant has satisfied the requirements of Section 494.043(1)(f) and (2), Florida Statutes,
said claimant has not satisfied the requirements of Section 494.042(2), Florida Statutes, as amended.
Accordingly, said claim is denied at this time without prejudice and, once the statutory requirements have been met, shall be paid in the order that notices
were duly filed with the Department, up to the maximum amount permitted by law if funds are available, as required by Section 494.044, Florida Statutes, as amended.
Turner Claim. Based upon the foregoing Findings of Fact, particularly those findings contained in paragraph 14, while it appears that claimant has satisfied the requirements of Section 494.043(1)(f), Florida Statutes, as amended, said claimant has not satisfied the requirements of Sections 494.042(2) and 494.043(2), Florida Statutes, as amended. Accordingly, said claim is denied at this time without prejudice and, once the statutory requirements have been met, shall be paid in the order that notices were duly filed with the Department, up to the maximum amount permitted by law if funds are available, as required by Section 494.044, Florida Statutes, as amended.
Mitchell Claim. Based upon the foregoing Findings of Fact, particularly those findings contained in paragraph 15, claimant has failed to satisfy any of the provisions of Section 494.043, Florida Statutes, as amended. Accordingly, said claim is denied at this time without prejudice.
Anglada Claim. Based upon the foregoing Findings of Fact, particularly those findings contained in paragraph 16, claimant has failed to satisfy any of the provisions of Section 494.043, Florida Statutes, as amended. Accordingly, said claim is denied at this time without prejudice.
Smith Claim. Based upon the foregoing findings of Fact, particularly those findings contained in paragraph 17, while it appears that claimant has satisfied the requirements of Section 494.043(1)(f) and (2), Florida Statutes, said claimant has not satisfied the requirements of Section 494.042(2), Florida Statutes, as amended. Accordingly, said claim is denied at this time without prejudice and, once the statutory requirements have been met, shall be paid in the order that notices were duly filed with the Department, up to the maximum amount permitted by law if funds are available, as required by Section 494.044, Florida Statutes, as amended.
To summarize, the order of claims duly filed with the Department with respect to Apt and/or Schleusener is as follows:
Date | Certified Received | Claimant(s) | Case No. | Claim Amount |
1. | 03/29/84 | Schlaugat | 86-15853CB | $10,000* |
2. | 05/04/84 | Fuhrman & | against APT. 84-15882 | $10,000 |
3. | 09/10/84 | LaCotche Paine | against APT. 84-18235CX | $10,000 |
4. | 03/22/85 | against Schleusener D&R Schiavone, 86-009064CN | $10,000 | |
against Schleusener Paul | 10,000 | |||
Miller | 10,000 | |||
Barron & | 10,000 | |||
5. | 04/08/85 | Margerite Zinni 84-8669CG | 10,000 | |
6. | 01/08/86 | against Schleusener Turner 85-28746 | 10,000* 10,000 | |
7a. | 08/01/86 | against APT Schlaugat 86-11072CY | 10,000* | |
b. 08/01/86 | Hebl | 86-11072CY against Schleusener | 10,000* | ||
c. 08/01/86 d. 08/01/86 | Schlaugat Hebl | APT Proof of Claim APT Proof of | 10,000* 10,000* | ||
8. 10/06/86 | Smith | Claim APT Proof of | 10,000* | ||
9. 10/14/86 | Hebl | Claim 86-15853 CB | 10,000* | ||
10. 10/31/86 | Smith | against Apt Suit against | 10,000* | ||
Apt | |||||
11a. | 03/30/87 | Zinni | APT Proof | of | 10,000* |
b. | 03/30/87 | Campbell | Claim APT Proof | of | 10,000 |
c. | 03/30/87 | Ferdinand | Claim APT Proof | of | 10,000 |
12. | 04/02/87 | Zinni | Claim APT Proof | of | 10,000* |
Claim | |||||
*Although some claimants have filed more than one notice by certified mail, pursuant to Section 494.044(1), Florida Statutes, each claimant is only entitled to up to $10,000 per licensee.
The following is a summary list of the status of claims duly filed with the Department and perfected after the two-year period had expired, wherein a prima facie case of waiver or abandonment has not been demonstrated:
Provisions Provisions
Claimant(s) Satisfied Not satisfied
1. Schlaugat (86-1584CB s. 494.042(2), s. 494.044(2)
against Apt) 494.043(1)(f) & (as amended)
494.043(2)
2. Fuhrman & LaCotche 494.043(1)(f) 494.042(2), (84-15882 against Apt) (as amended) 494.043(2) &
(as amended) 494.044(2) (as amended)
3. Zinni (84-8669 CG 494.043(1) s. 494.043(1)(a)-(d)
against Schleusener) (e) & (f) & 494.044(2)
(as amended) (as amended)
4. Turner (85-28746CM 494.043(1)(f) 494.042(2) against Apt) 494.043(1)(f) 494.042(2)
(as amended) 494.043(2) &
(as amended)
5. Hebl (86-1583CB 494.042(2) and s. 494.044(2)
against APT) 494.043(1) (as amended)
(f) and (2) (as amended)
6. Smith (Suit against 494.043(1) 494.042(2) &
APT) (f) & (2) 494.044(2)
(as amended) (as amended)
7a. | Zinni (APT Claim) | proof of | 494.043(1) (f) & (2) (as amended) | 494.042(2) & 494.044(2) (as amended) |
b. Campbell (APT proof | 494.043(1) | 494.042(2) & | ||
of Claim) | (f) & (2) (as amended) | 494.044(2) (as amended) | ||
c. Ferdinand (APT proof | 494.043(1) | 494.042(2) & | ||
of Claim) | (f) & (2) (as amended) | 494.044(2) (as amended) | ||
Based upon the foregoing, | without taking | into account the Holdheim Claim that | ||
was perfected within the two-year period, the order of payment is as follows:
Schlaugat (against APT) (perfected)
Fuhrman & LaCotche (against APT)
Zinni (against Schleusener)
Turner (against APT)
Hebl (against APT) (perfected)
Smith (against APT)
a. Zinni (against APT)
Campbell (against APT)
Ferdinand (against APT)
FINAL ORDER
IT IS THEREFORE determined and ordered that:
The Department received the first proper notice of
an action against APT/Schleusener at the time the action was instituted on April 12, 1984. Accordingly, the two-year period mandated by Section 494.044(1), Florida Statutes, began to run on said date as against APT/Schleusener and expired on April 11, 1986.
The Department shall pay Charles P. Schlaugat and Mary K. Schlaugat
$10,000 once said persons have filed with the Department a duly executed, recorded assignment substantially in the form of Exhibit A.
The Department shall pay Evelyn M. Holdheim $10,000 once said person has filed with the Department a duly executed recorded assignment substantially in the form of Exhibit A.
All other claimants will be paid from the Fund up to the maximum amount permitted by law if funds are available once they meet all of the requirements of Sections 494.042, 494.043 and 494.044, Florida Statutes. Payment shall be made, without proration, in the order in which proper notices have been filed with the Department. The present order of notices filed with the Department is as follows: (1) Furhman and LaCotche (84-15882 against Apt) (unperfected); (2) Zinni (84-8669CG against Schleusener) (unperfected); (3) Turner (85-28746CM against Apt) (unperfected); (4) Hebl (86-15853CB against Apt) (perfected); (5) Smith (Suit against APT) (unperfected); (6a) Zinni (APT proof of claim)
(unperfected); (b) Campbell (APT proof of claim) (unperfected); (c) Ferdinand (APT proof of claim) (unperfected). Assignments filed with the Department should be substantially in the form of Exhibit A.
DONE and ORDERED in Tallahassee, Florida, this 7th day of April, 1988.
GERALD LEWIS, as Comptroller of the State of Florida and Head of the Department of Banking and Finance
ENDNOTES
1/ On or about December 30, 1987, a Petition for Intervenor for Sanders Turner and Maureen Turner and a Petition for Intervenor Dale A. Paine weere filed with the Department. As the foregoing petitions were filed subsequent to the entry of the Recommended Order, they will be considered separately from these proceedings.
2/ Although technically documentation received subsequent to the entry of the Recommended Order should not be considered, taking note of such evidence will not prejudice any of the other respective parties because, except in a few instances, denials of claims have been without prejudice to allow said claimants to submit additional documentation and other proof in order to perfect their claims. Additionally, considering such information could eliminate the necessity of entering another Notice of Intent at the time.
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEED- INGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING (1) COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF BANKING AND FINANCE AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
COPIES FURNISHED:
James E. Bradwell, Hearing Officer Division of Administrative
Hearings
The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32399
Walter W. Wood
Deputy General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399
Randall A. Holland, Director Division of Finance
Office of the Comptroller
The Fuller Warren Bldg., 2nd Floor
202 Blount Street Tallahassee, Florida 32399
Paul C. Stadler, Jr. Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399
Charles and Mary Schlaugat 1436 N.E. 57th Ct.
Paragraphs
Fort Lauderdale, Florida 33334 4
James and Gladys Hebl Rt. 2, Box 221 B
Eysta, Minnesota 55934 5
M. Ross Shulmister Attorney for the Schlaugat
and Hebl Claims
3081 East Commercial Blvd.
Ft. Lauderdale, Florida 33308 4 and 5
Arthur M. Wolff
Attorney for the Holdheim Claim Wolff and Gora
Landmark Building
3045 North Federal Highway (At Oakland Park Blvd.)
Ft. Lauderdale, Florida 33339 6
Kenneth S. Rappaport Attorney for the Fuhrman and
LaCotche Claim
Squires Bldg., Suite 203
1300 North Federal Highway 7
Boca Raton, Florida 33432
Stephen F. Kessler
Attorney for the Campbell and Ferdinand Claims
3510 Biscayne Blvd., Suite 203B
Miami, Florida 33137 8 and 9
James R. Eddy
Attorney for the Stuart, Kutik, and Marques Claim
950 N. Federal Highway, Suite 219
Pompano Beach, Florida 33062 10
E.E. Jordan
Attorney for the Paine and Turner Claims 650 Southeast Third Avenue
Ft. Lauderdale, Florida 33301 11 and 14
Richard D. La Sala
Attorney for the Schiavone et al. Claim
200 E. Sixth Street, Suite 306
Ft. Lauderdale, Florida 33301 12
John C. Rayson
Attorney for the Zinni Claim 2400 E. Oakland Park Blvd.
Ft. Lauderdale, Florida 33306 13
Fred C. Bamman, III
Attorney for the Mitchell Claim
P.O. Box 399
Pompano Beach, Florida 33062 15
Albert F. Tellechea
Attorney for the Anglada Claim
The First Bankers Bldg., Suite 850
135 West Central Blvd.
Orlando, Florida 32801 16
Steven E. Moody
Attorney for the Smith Claim
1333 S. University Drive, Suite 201
Plantation, Florida 33324 17
| Issue Date | Proceedings |
|---|---|
| Dec. 14, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 07, 1988 | Agency Final Order | |
| Dec. 14, 1987 | Recommended Order | Comptroller should pay $10,000 for each claim on Mortgage Brokerage Guaranty Fund to claimants with perfected claims & evaluate other claims for payment. |
