Judges: K. N. AYERS
Agency: Department of Financial Services
Latest Update: Nov. 17, 1987
Summary: Acting as mortgage broker without license is grounds for denying license.
87-3348STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHRISTIAN MORTGAGE NETWORK, INC., )
)
Petitioner, )
)
vs. ) CASE No. 87-3348
)
OFFICE OF COMPTROLLER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on October 15, 1987, at Clearwater, Florida.
APPEARANCES
For Petitioner: Gerald J. Giunta, Jr., pro se
620 McCrillus Road
Largo, Florida 34640
For Respondent: Steven M. Christian, Esquire
Assistant General Counsel Office of the Comptroller 1313 Tampa Street
Tampa, Florida 33602-2294
By undated letter received by the Comptroller's Office July 28, 1987, Gerald J. Giunta, President, Christian Mortgage Network, Inc. (CMNI), Petitioner, challenges the denial of CMNI's application for licensure as a mortgage broker. By letter dated June 30, 1987, the Office of the Comptroller, Respondent, denied CMNI's application for a mortgage broker's license by reason of Giunta having violated Section 494.093, Florida Statutes, by acting as a mortgage broker without holding a mortgage broker's license.
At the hearing, Petitioner testified in his own behalf, Respondent called four witnesses and seven exhibits were admitted into evidence. (Exhibit 5 is the deposition of a fifth witness for Respondent).
Proposed findings submitted by Respondent are accepted, except for proposed findings 1-4, which are included in the foregoing introduction.
FINDINGS OF FACT
At the time of CMNI's application, Mr. Giunta was president of CMNI and, as such, exercised primary control over the day-to-day activities of CMNI (Tr.12).
Mr. Giunta is also the president of Christian Investors Network, Inc. (CINI), and exercised similar control over the activities of that corporation (Tr. 11-12).
Mr. Giunta, CMNI, and CINI have never been licensed as mortgage brokers by the Department (Tr. 12-13).
CINI, with the knowledge and approval of Mr. Giunta, placed advertisements in the St. Petersburg Times (Tr. 13). One such advertisement appeared in St. Petersburg Times edition of April 20, 1986, under the heading "Loan Information." That advertisement stated "Major Real Estate Financing" and "Residential Real Estate." (Exhibit 1).
Sometime in the middle of 1986, Paul Mark called Mr. Giunta in response to an advertisement in the St. Petersburg Times. Mr. Mark was seeking a mortgage loan or loans to build several houses on real estate he owned and so informed Mr. Giunta, who indicated to Mr. Mark that he could arrange a mortgage loan for Mr. Mark (Tr. 28-29).
Messrs. Mark and Giunta met shortly after the telephone call. Mr. Mark handed Mr. Giunta a package of documents including a site plan, survey, credit information and a completed mortgage loan application. Mr. Giunta again stated that he would have no problem arranging a mortgage loan for Mr. Mark and requested a fee for such service in the amount of $300.00 (Tr. 30-31).
After the meeting, Mr. Mark sent to Mr. Giunta a check made out to Mr. Giunta in the amount of $300.00, together with a letter dated July 16, 1986, confirming that Mr. Giunta would secure mortgage financing (Tr. 31-33); Exhibit 3).
In October of 1986, Clifford Clark called Mr. Giunta in response to a newspaper advertisement, seeking a mortgage loan to refinance a certain parcel of property owned by Mr. Clark. Mr. Giunta stated that he could arrange mortgage financing for Mr. Clark at an interest rate of approximately ten percent (Tr. 48-49).
After the telephone contact, Messrs. Clark and Giunta met and Mr. Giunta had Mr. Clark fill out a residential loan application (Exhibit 7). Mr. Clark provided Mr. Giunta with originals of his deed to the property and other real estate related documents. Mr. Giunta indicated that he could obtain mortgage financing for Mr. Clark and requested a fee of $250.00, whereupon Mr. Clark gave Mr. Giunta a check for that amount (Tr. 49-51).
In early 1986, Robert Miraglia called Mr. Giunta in response to a newspaper advertisement, seeking a second mortgage. Mr. Giunta arranged to meet with Mr. Miraglia to discuss the requested loan.
In August of 1986, Russell Foreman contacted Gerald Giunta in response to a newspaper advertisement, seeking a mortgage loan to refinance his home (Exhibit 5).
On August 26, 1986, Mr. Foreman met with Mr. Giunta and at Mr. Giunta's request gave him copies of his deed, a survey of the lot, the mortgages to be satisfied and other real estate related documents. Mr. Giunta assured Mr. Foreman that there would be no problem in obtaining a mortgage loan and requested a fee of $200.00. Mr. Foreman wrote a check for that amount and gave it to Mr. Giunta (Exhibit 5).
Mr. Giunta never informed Messrs. Mark, Clark, Miraglia and Foreman that he was not a licensed mortgage broker.
In approximately April of 1986, Mr. Giunta met with Mr. Arthur M. James, Area Financial Manager for the Department's Tampa Regional Field Office. At that meeting, Mr. James explained to Mr. Giunta that he could not offer to arrange or negotiate mortgage loans on behalf of clients and collect a fee for such service without first becoming licensed by the Department as a mortgage broker (Tr. 84).
At some point prior to May 8, 1986, Mr. Giunta was contacted by the Department and informed of the statutes and regulations applicable to advertising his services in the area of real estate financing (Exhibit 2; Tr. 23-24).
At some point in 1987, CMNI, with the knowledge and approval of Giunta, listed "Christian Mortgage Network, Inc." in the yellow pages of a local telephone book under the heading of "Mortgages." (Exhibit 1; Tr. 15).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
As President of CMNI, Mr. Giunta will be the chief operating officer of the company and the agent of the company operating under the mortgage broker's license here sought. Section 494.039(2), Florida Statutes, 1986, provides:
Notwithstanding the provisions of subsection (1), it shall be grounds for denial of registration
if the designated principal mortgage broker; any officer, director, partner, joint venture, or
any natural person owning a 10 percent or greater interest in the mortgage brokerage business;
or any natural person who is the ultimate equitable owner of a 10 percent or greater in the mortgage brokerage business has committed any violation
set forth in s. 494.055(1) or has pending any criminal prosecution or administrative enforcement action, in any jurisdiction, which involves fraud, dishonest dealing, or any other act of moral turpitude.
19, Section 494.093(1), Florida Statutes (1986), provides it is unlawful and a violation of the provisions of this chapter for any person to act as a mortgage broker in this state without a mortgage broker's license issued by the department.
Section 455.055(1), Florida Statutes, provides in pertinent part that the following acts shall constitute grounds for denial of a license or registration as a mortgage broker:
Acting as a mortgage broker or mortgage brokerage business without a current, active license or registration.
Section 494.02(3), Florida Statutes, defines mortgage broker as:
Any person not exempt under s. 494.03 who for compensation or gain, or in the expectation of compensation or gain, either directly or indirectly, makes, negotiates, acquires, sells, or arranges for, or offers to make, negotiate, acquire, sell, or arrange for, a mortgage loan or mortgage loan commitment.
Section 494.08(1), Florida Statutes, provides in part that no person who is not licensed as a mortgage broker or exempt under s. 494,03 shall use the word "mortgage" or similar words in any advertising which tends to represent that he arranges real estate mortgage loans.
In the advertising placed in the St. Petersburg Times (Exhibit 1), Giunta advertised CINI in terms clearly indicating CINI was a licensed mortgage broker and Similarly listed both CINI and CMNI in the St. Petersburg telephone directory under the heading "Mortgages, (Exhibit 1)
This violates the provisions of Section 494.08(1) above cited and disqualifies CMNI for licensure as a mortgage broker because Giunta is an officer of CMNI. Similarly, CMNI is disqualified by reasons of Giunta's acting as a mortgage broker in those transactions involving Mark, Clark, Miraglia, and Foreman.
Petitioner's contention that CMNI should be registered because all of Giunta's infractions occurred prior to the incorporation of CMNI is without merit as it overlooks the fact that corporations can act only through their representatives and the principal representative of CMNI is a person who frequently committed acts which disqualify him, and any corporation of which he is an officer, from licensure.
From the foregoing, it is concluded that Gerald J. Giunta, Jr., operated as a mortgage broker in his dealings with Mark, Clark, Miraglia and Foreman in violation of provisions of Chapter 494, Florida Statutes, that he caused ads to be placed in the newspapers and telephone yellow pages which violate provisions of Chapter 494 and that any company of which he is an officer or director is disqualified for licensure as a mortgage broker. It is
RECOMMENDED the application of Christian Mortgage Network, Inc., for licensure as a mortgage broker be DENIED.
ENTERED this 17th day of November, 1987, in Tallahassee, Florida.
K. N. AYERS 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 off Administrative Hearings this 17th day of November, 1987.
COPIES FURNISHED:
Mr. Gerald J. Giunta, Jr., President Christian Mortgage Network, Inc.
9887 North Gandy Boulevard St, Petersburg, FL 33702
Stephen M. Christian Assistant General Counsel Office of Comptroller
Department of Banking and Finance Regional Service Center
1313 Tampa Street, Suite 713
Tampa, FL 33602-3394
Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol
Tallahassee, FL 32399-0305
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE
CHRISTIAN MORTGAGE NETWORK, INC., )
)
Petitioner, )
)
vs. ) CASE No. 87-3348
) File No. 952-F-8/87
OFFICE OF COMPTROLLER, )
)
Respondent. )
)
FINAL ORDER DENYING MORTGAGE BROKERAGE BUSINESS REGISTRATION
The State of Florida, Office of Comptroller, Department of Banking and Finance, Division of Finance ("Department") hereby renders its Final Order in this case, and as grounds therefore adopts the Findings of Fact set forth in the Recommended Order of Hearing Officer K. N. Ayers entered on November 17, 1987,
("Recommended Order"), a copy of which is attached hereto and incorporated herein by reference pursuant to Section l20.57(1)(b)10, Florida Statutes.
CONCLUSIONS OF LAW
The Department adopts the Conclusions of Law set forth in the Recommended Order and makes the following additional Conclusion of Law pursuant to Section 120.57(1)(b)l0, Florida Statutes:
Christian Mortgage Network, Inc., by listing itself in the yellow pages of a local telephone book under the heading of "Mortgages," violated Section 494.08(1), Florida Statutes, which prohibits an unlicensed person from using the word "mortgage" or similar words in any advertising or like matter which tend to represent that he arranges real estate mortgage loans. Christian Mortgage Network, Inc. is thus subject to the disciplinary action set forth in Section 494.05-2, Florida Statutes, including denial of a mortgage brokerage business registration, by operation of Section 494.055(1)(q), Florida Statutes, which makes a violation of any provision of Chapter 494, Florida Statutes, a ground for such disciplinary action.
FINAL ORDER
Based upon the foregoing, the application of Christian Mortgage Network, Inc. for a mortgage brokerage business registration is hereby DENIED.
DONE AND ORDERED this 4th day of January 1988, in Tallahassee, Florida.
GERALD LEWIS, as Comptroller of the State of Florida and Head of the Department of Banking and Finance
Copies furnished:
Gerald Guinta, Jr.
620 McCrillus Road
Largo, Florida 34640
Stephen M. Christian Assistant General Counsel Office of Comptroller 1313 N. Tampa Street Suite 615
Tampa, Florida 33602-3394
K. N. Ayers Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Randall A. Holland Director
Division of Finance Fuller-Warren Building
202 Blount Street
Tallahassee, Florida 32399-0350
Docket for Case No: 87-003348
Orders for Case No: 87-003348
