vs. ) CASE NO. 87-1152
Respondent. )
For Petitioner: Arthur R. Shell, Jr., Esquire, of Orlando For Respondent: Robert P. Rosin, Esquire, of Sarasota
In this case, Petitioner, Department of Professional Regulation (Department), filed an Administrative Complaint against Respondent, Charles Alan Patsch, alleging essentially: (1) that Patsch, acting as listing broker, told his seller that the loan on which the closing of the contract for sale of the seller's house was contingent had been approved; (2) that the loan in fact had not been approved; (3) that Patsch had not been informed by any reliable source that the loan had been approved; and (4) that, in reliance on Patsch's misrepresentation, the seller incurred financial losses, primarily in connection with the house the seller had contracted to buy contingent on the sale of the seller's house, that would not have been incurred absent Patsch's misrepresentation. Respondent denies the charges. A formal administrative hearing was held in this case in Sarasota on July 16, 1987. At the conclusion of the hearing, the Department ordered a transcript, and the parties asked for and received 20 days from the filing of the transcript or at least until September 10, 1987, in which to file proposed recommended orders. Since the transcript was filed on August 3, 1987, proposed recommended orders were due by September 10, 1987. However, no proposed recommended orders have been filed.
Respondent, Charles Alan Patsch, is and has been at all pertinent times a licensed real estate salesman in the State of Florida, having been issued license number 0442576.
Patsch was working for a broker in Sarasota when he was assigned responsibility for an existing listing agreement for the home of Mary Catherine (Williams) and Randy Silcox at 1125 Idlewild Court in Sarasota.
From early on in their business relationship, the Silcoxes were difficult clients for Patsch. They were having financial and personal problems which contributed to Mary Silcox's emotionally distraught condition. As a result, she can be somewhat scattered, confused, unreasonable and disorganized.
Mary Silcox frequently sought Patsch's advice and counsel on her financial and personal problems, which Patsch politely declined to give except in general terms. Likewise, Mary Silcox also asked Patsch for professional advice in areas in which Patsch was not qualified or competent, and Patsch declined.
Nonetheless, Patsch's working relationship with the Silcox's, particularly Mary Silcox, included an unusual amount of "hand-holding," i.e., listening to her problems and trying to give her some kind of personal compassion, support and reassurance.
On February 13, 1986, another broker, Howard Sadwin, procured a Contract For Sale Of Real Estate (1125 Idlewild Court) between the Silcoxes and
E. K. (Kay) Mitchell, who also is a licensed real estate salesman. As salesman for the listing broker, Patsch participated in concluding the contract (and signed as a witness.) Among other things, the contract provided as special clauses (1) that "[p]resent tenants shall sign a one-year lease for present rent amount of $300 per month for the one bedroom, one bath rental unit [a guest house on the property]" and (2) that "[s]eller shall complete repairs and painting to roof now in progress to be finished on or before the day of closing." The contract was made contingent on Mitchell obtaining third party financing which Mitchell was to pursue diligently, and closing was to be on or before April 21, 1986.
At some point before April 21, 1986, Mitchell became aware of a conflict, and the closing deadline was postponed to April 28, 1986.
By early March, 1986, the Silcoxes began to think they might want to move to Inverness, Florida. After her fashion, Mary Silcox asked Patsch for advice whether they should. Patsch side-stepped that question, saying it was their personal decision and he could not say. Patsch also declined her request that he drive to Inverness with them to help them find a house, saying he did not know the market. Instead, he referred them to a local broker in Inverness and cautioned them to be sure the contract they entered was made contingent on the closing of the sales contract on 1125 Idlewild Court.
On March 8, 1986, the Silcoxes drove to Inverness, found a house they liked and signed a contract to buy it (which included the contingency Patsch had recommended, plus a third party financing contingency.) They then began the process of applying for a loan.
During April, 1986, Mitchell applied for financing and began the process of cooperating with the proposed lender in putting together a loan package.
Again after her fashion, Mary Silcox frequently checked with Patsch, among other things, to see how things, including the Mitchell loan, were going. At first, Patsch told her that he did not know but he would check with Mitchell. After several similar requests, Patsch asked Mitchell for permission to contact her lender directly to get the status of the loan, and Mitchell agreed. Patsch then began contacting the lender's representative to learn the status of the Mitchell loan. In response to Silcox's numerous inquiries, Patsch truthfully told her his best knowledge--to the effect that Mitchell had applied and there did not seem to be any problems with the Mitchell loan but that they were waiting for the paperwork to be completed and they would not know for sure until they got written loan approval. When the financing was approved, Mitchell was to notify Patsch and schedule a closing with the title company Mitchell had chosen.
As a result of delays in Mitchell's financing, on April 25, 1986, the closing deadline again was postponed, this time to May 23, 1987. When Mary Silcox asked the reason for the delay, Patsch relayed the information he had been given--that there was no problem with Mitchell, but there was a backlog of loan applications because of low interest rates and the paperwork and loan approval process had been delayed.
Sometime approximately between April 25 and May 9, 1986, the Silcoxes' loan for the Inverness house was turned down because of a low appraisal. On May 9, 1986, Mary Silcox went to Patsch to ask his advice whether they should re- apply. Specifically, she again asked if there was any problem with the Mitchell loan. Patsch reiterated his best knowledge--that there was no problem with the loan and that the loan application had been made over a week ago (in Mary Silcox' words, "it was put through way last week") and that they were just waiting on the paperwork. Patsch encouraged the Silcoxes to apply again and to hurry to get everything in order in light of the May 23 deadline for the 1125 Idlewild Court closing. He did not say that the Mitchell loan had been approved. Either at that time or at a later date, Mary Silcox came to believe that Patsch had meant that the Mitchell loan had been approved.
Acting on what Patsch had told her, Mary Silcox and her husband drove to Inverness the next day, May 10, 1986, and applied for a loan with a different lender. They paid $340 for a new credit report, survey and approval.
Sometime between May 15 and 19, 1986, Patsch visited Mary Silcox at her house in connection with the Mitchell loan. In the course of their conversation, Patsch again told Mary Silcox approximately what he had said on May 9 about the status of the loan. He commented to the effect that it should be only a few more days (May 23, 1986) before he would be picking her up to go to the title company to close the sale. (At this time, he had not heard from Mitchell that she had scheduled the closing but was still assuming that the closing would take place as scheduled on May 23, 1986.) Mary Silcox again interpreted Patsch to mean that the Mitchell loan had been approved.
A short time later, perhaps on May 19, 1986, Mitchell visited Mary Silcox to get documentation she needed for her loan package to be complete for submission to the underwriter. Silcox asked her why she needed it if the loan had been approved. Mitchell told her the loan had not been approved (or even submitted yet.) Silcox tried to reach Patsch but was unable to and eventually was able to talk to another salesman in Patsch's office and to Patsch's broker.
A short time later, perhaps on May 22, 1986, Mitchell had a chance meeting with Patsch at a morning meeting of the local board of realtors. Mitchell asked Patsch why he had told Mary Silcox that Mitchell's loan had been approved. Patsch told her he had to tell her something to pacify her since her nerves were shot and she was pestering him. The evidence was not clear why Patsch did not correct Mitchell's misstatement of the facts or explain to her in detail exactly what he had told Mary Silcox.
On May 21, 1986, Mitchell and the Silcoxes again agreed to extend the closing deadline, this time to June 13, 1986. Patsch did not participate in the extension, and Mary Silcox was unable to contact him before June 9, 1986, when she called Patsch's broker and demanded to work with someone else. Patsch had no further dealing with the Silcoxes.
Mitchell and the Silcoxes agreed to yet another extension of the closing, to July 7, 1986. Eventually, Mitchell was disapproved by two different
lenders, and the sale never closed. The Silcoxes then discontinued their loan approval process on the house in Inverness, and that sale never closed, either.
In her mind, Mary Silcox came to blame Patsch unreasonably not only for lost expenditures she and her husband made between May 9 and May 19, 1986, in connection with the second Inverness house loan application and for loss of a paying house guest at 1125 Idlewild (who moved out on about May 16, 1986, and would not move back) but also for loss of the sale to Mitchell, loss of the purchase of the Inverness house, all of the Silcoxes' expenditures in connection with either, personal problems between her and her husband, medical-related bills for her, and their financial problems in general. None of the latter items had anything to do with anything Patsch ever allegedly said on May 9 through May 16, 1986, but Mrs. Silcox seems to think she is entitled to reimbursement as a result of Patsch's alleged misrepresentation.
CONCLUSIONS OF LAW
Section 475.25(1)(b), Florida Statutes (1985), provides:
The [Florida Real Estate Commission] may deny an application for licensure, registration, or permit, or renewal thereof; may suspend a license or permit for a period not exceeding 10 years;
may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, or any or all of the foregoing, if it finds that the licensee, permittee, or applicant:
* * *
(b) Has been guilty of fraud, misrepresentation, concealment, false promises, false pretense, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in
any business transaction in this state
or any other state, nation, or territory; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied,
in a real estate transaction; has aided, assisted, or conspired with any other
person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design, or scheme. It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss
has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person
in confidential relation with the licensee or was an identified member of the general public.
As the Findings Of Fact reflect, the evidence did not prove a violation of Section 475.25(1)(b).
Based on the Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint filed against the Respondent, Charles Alan Patsch, in this case.
RECOMMENDED this 22nd day of September, 1987, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1987.
Arthur R. Shell, Jr., Esquire Division of Real Estate
400 W. Robinson Street Orlando, Florida 32801
Robert P. Rosin, Esquire 1900 Main Street
400 W. Robinson Street Orlando, Florida 32801
Joseph A. Sole, Esquire General Counsel
