STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) BANKING AND FINANCE, DIVISION OF ) FINANCE, )
)
Petitioner, )
)
vs. ) CASE NO. 89-3203
)
REBECCA LOVE HENDERSON, an )
individual, )
)
Respondent. )
) REBECCA LOVE HENDERSON, an )
individual, )
)
Petitioner, )
)
vs. ) CASE NO. 89-3769
) STATE OF FLORIDA, DEPARTMENT OF ) BANKING AND FINANCE, DIVISION OF ) SECURITIES AND INVESTOR )
PROTECTION, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Punta Gorda, Florida, on September 20, 1989 before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For the Department: Robert K. Good, Esquire &
Elise M. Greenbaum, Esquire Office of the Comptroller
400 W. Robinson Street, Suite 501 Orlando, Florida 32801
For Ms. Henderson : Rebecca Love Henderson, pro se
5635 Bryner Drive
Jacksonville, Florida 32244 STATEMENT OF THE ISSUES
The issues for consideration in this hearing were whether Ms. Henderson acted as a mortgage broker during the periods as alleged in the Cease and Desist
Order filed herein; and whether the Department properly denied Ms. Henderson's application for registration as an associated person.
PRELIMINARY STATEMENT
On May 3, 1989, Elise M. Greenbaum, Assistant General Counsel, Office of the Comptroller, through Robert K. Good, entered an Order to Cease and Desist, addressed to Ms. Henderson, which ordered her to cease and desist her activities as a mortgage broker with Mortgage Acceptance Corporation located in Pt.
Charlotte, Florida. On May 26, 1989, Ms. Henderson filed her answer to the Cease and Desist Order and requested a formal hearing, and on June 12, 1989, the matter was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer. Hearing was set by the undersigned, by Notice of Hearing dated June 21, 1989, for September 6, 1989.
In the interim, however, by letter dated May 5, 1989, Don B. Saxon, Director of the Division of Securities and Investor Protection, notified Ms. Henderson that her application for registration as an associated person of Triple Check Financial Services, Inc.had been denied because she was the subject of a pending enforcement action, relating to the Cease and Desist Order. This matter was referred to the Division of Administrative Hearings by Notice of Related Case dated July 10, 1989, along with the Department's Motion for Continuance dated July 7, 1989. Thereafter, on July 20, 1989, the undersigned granted the Motion for Continuance resetting the hearing for September 20, 1989, and on July 24, 1989, consolidated both cases for hearing on September 20. The hearing was held as scheduled.
At the hearing, the Department presented the testimony of Carol May Wilson, a former client of Respondent at Mortgage Acceptance Corporation, (MAC); Donald
Mullen, a client; Herbert Roshkind, a client; Kimberly Lynn Johnson, a former coworker at MAC; and Kenneth L. Moulin, a former coworker at MAC. The Department also introduced Petitioner's Exhibits 1 through 4, with the exception of Petitioner's Exhibits 3B and 4C for Identification which were not admitted. Ms. Henderson presented the testimony of Marcus Combs, a former client, and introduced Respondent's Exhibits A through U.
No transcript was furnished. However, both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
FINDINGS OF FACT
At no time pertinent to the issues herein was Rebecca Love Henderson licensed by the State of Florida, Department of Banking and Finance as a mortgage broker under the provisions of Chapter 494, Florida Statutes. The Department of Banking and Finance is the state agency responsible for licensing and supervising mortgage brokers and associated persons in this state.
In early January, 1987, Ms. Henderson began working for MAC, a mortgage banking concern, at its office located at 4045 Tamiami Trail, Pt. Charlotte, Florida.
In March, 1987, Carol May Wilson went to MAC's office to see about getting the adjustable rate mortgage then currently existing on her residence changed to a fixed rate mortgage, because her research indicated that MAC had the best mortgage rates available at the time. Ms. Wilson entered the office without an appointment and spoke to the receptionist who called Ms. Henderson to
speak with her. On that visit, Ms. Henderson gave Ms. Wilson a pamphlet which contained the then existing mortgage rates and discussed with her the terms and rates, the amount of payment required both as a down payment and as monthly payments, and similar matters. After that discussion, Ms. Wilson left with the pamphlet without making application.
After discussing what she had been told by Ms. Henderson with her husband, Ms. Wilson and her husband went back to MAC's office where they again spoke with Ms. Henderson. In this latter conversation, they again discussed the applicable rates and filled out an application for a mortgage. At that time they also paid a $300.00 fee to cover the cost of an appraisal on their property, and several other costs and fees. At this time, Ms. Henderson helped the Wilsons fill out the form and, in addition, prepared and delivered to them a "Good Faith Estimate", and discussed the appraisal costs, points, and the need for a termite inspection. On this second visit, Ms. Henderson gave the Wilsons a rate option form which they and she signed, which locked in the interest rate at 8 1/2 percent. She also gave them a receipt for the appraisal fee they had paid. Both forms reflect Ms. Henderson as a "loan officer."
The Wilsons went to MAC on their own. They had not been solicited by Ms. Henderson or any other employee of the firm but came in on the basis of the firm's advertisements. While in the facility, they noticed a display board which indicated the current rates and points being charged and the rate and points reflected on that board were those charged by Ms. Henderson on behalf of MAC. She did not negotiate, or attempt to negotiate any change to either the rates or the points. During her conversation, Ms. Henderson explained the various types of loans available and the various options available but did not urge one over the other. At least one of the forms, the Good Faith Estimate form, was mailed to the Wilsons sometime after their visit and was sent with a cover letter from another employee of the firm. Neither Mr. nor Mrs. Wilson asked to speak with anyone else during either of their visits to MAC. Consequently, they do not know whether they could have done so had they desired. The documentation they received from Ms. Henderson appeared complete and they were satisfied with the service on their mortgage.
At some time in early 1987, Donald R. Mullin, accompanied by his wife, went to MAC to refinance his mortgage and on that visit, spoke with Ms. Henderson. Mr. Mullin had previously filled out a loan application form which he had received from Floyd Henderson, also of MAC. Mr. Mullin was referred to MAC by a friend at work. He was not solicited by Respondent.
During this meeting, the Mullins presented the forms they had filled out and paid the various appraisal and other fees required. The receipt given them by Ms. Henderson for these fees reflects her as a loan officer. At this meeting, Ms. Henderson did not indicate whether the loan would be approved or not. The only point for negotiation during the Mullin interview was with regard to the appraisal fee. Mr. Mullin had just had an appraisal done for his newly acquired mortgage and did not feel it necessary to have another one. During their conversation, Ms. Henderson agreed to see if the prior appraisal could be used and if so, the fee would be refunded. In fact it was refunded. The loan did not close because Mr. Mullin was not considered to have sufficient income to support the payments. However, at no time during their discussions, did Ms. Henderson make any commitments on behalf of MAC, nor did she offer to change points or rates.
Herbert Roshkind and his wife were referred to MAC by their real estate broker and dealt exclusively with Ms. Henderson in all their dealings with the
company. She gave them all the specifics relating to their potential loan, including interest rates. She explained that the rates varied weekly and that they could either lock in or not, as they chose. She also discussed the relevant fees for appraisal, credit report, etc., which she made clear were not refundable, and discussed the difference between a fixed rate and a variable rate mortgage. She also advised them of the various terms a loan could be taken for
Their loan was complicated to the extent that Mr. Roshkind was retired. His income came from real estate and other investments which could not easily be verified. As a result, Mr. Roshkind was contacted frequently by Ms. Henderson in the course of preparation of the loan documents, requesting additional information. On one occasion, she came to his home to get additional information and to get his signature on a document just prior to closing.
Ms. Henderson did not help the Roshkinds fill out their application. She gave them a package which they took home and filled out themselves. In the package was a list of 19 items which would be required to support the application, and her repeated requests for information related to these items. Mr. Roshkind at no time asked to speak with anyone else. He feels, however, that had he desired to do so, he could have.
The rates for mortgages were posted on a board in the office and at no time did Ms. Henderson offer to negotiate either rates or points. Further, from the time the Roshkinds first came in to pick up the application package until they returned it to the MAC office filled in, they received no solicitation or any contact at all from Ms. Henderson or MAC. When the loan was finally approved, in May, 1987, they received a commitment form that was signed by George Emery on behalf of MAC but which was delivered by Ms. Henderson.
Kimberly Lynn Johnson worked for MAC from May, 1986 to August, 1986 and during that period became familiar with Ms. Henderson and her father, Floyd
D. Henderson, one of the principals in the company. During the period she worked there, the office was run by C. F. Cline and Mr. Henderson. Ms. Johnson started work as a secretary-receptionist and progressed up through clerking duties until she was trained to act as a loan processor. At that point, though she was not licensed as a mortgage broker, she began accepting loan applications and dealing with prospective clients just as did Ms. Henderson.
When she took loan applications, she would receive the form from the prospective borrower, get the information required, and turn it over to a processor who would send out requests for the verifications required, do or order the credit report, and order an appraisal. At no time during this period was she a licensed mortgage broker nor did she know she had to be such to legally do what she was doing. She found this out only when she began studying for the broker's test approximately a year later.
During the period Ms. Johnson worked at MAC, Ms. Henderson was a loan officer and also worked for Monroe Title Company. It was during this period of time, Ms. Johnson observed Ms. Henderson doing much the same type of thing she was doing involving the interviewing of applicants, and discussing with them the application forms, rates, points, fees, and the like, as well. This same type of activity was also done by other loan officers who, as she understood it, were licensed, and who, in addition to their in-office work, also visited builders, realtors, and other possible sources of business for the firm. Ms. Johnson recalls quite clearly that Ms. Henderson was engaged in this outside activity as well. On numerous occasions as she left the office, Ms. Henderson would advise
Ms. Johnson where she was going, or her name would appear on the list of builders to be seen by herself and other loan officers.
When Ms. Johnson first started with the company, walk-in clients would be referred to a loan officer on a rotating basis. Ms. Henderson and other, licensed, loan officers were on that list for rotation. When she served as a loan officer, Ms. Johnson would stay with her client all the way from application through closing and on almost every occasion, once trained, she would complete the process without any help from a licensed loan officer. The same applied to Ms. Henderson.
Ms. Johnson was told by Mr. Cline that it was all right for her to act as a loan officer without a license as a mortgage broker as long as she didn't take a bonus or commission or did not solicit outside the office. Ms. Johnson was paid an hourly wage only. She does not know how Ms. Henderson was paid nor was any evidence admitted to define that. However, considering the fact that Mr. Moulin and Mr. Stillweaa both complained because their income was reduced as a result of Ms. Henderson's grabbing clients and her sharing of Moulin's builder clients, it can be inferred she was, at least in part, paid by commission.
Based on representations made by Mr. Cline, Ms. Johnson continued working without question until an inspector from the Department came in for an audit. At this point, she figured that something was wrong and subsequently found that only a loan officer in a commercial bank can take loan applications without being licensed as a mortgage broker. MAC was listed on it's business cards as a mortgage banker.
Though Ms. Henderson indicated from time to time she was going out to visit with builders, Ms. Johnson never saw her in negotiations with either builders or realtors. At the time in issue, Ms. Henderson's mother was terminally ill and had to be taken to the hospital and doctor's office on a regular basis. Ms. Johnson agrees it is possible Ms. Henderson could have been performing that service when ostensibly out on a call, but specifically recalls her saying she was, from time to time, going to visit a builder or realtor. She cannot say with certainty what Ms. Henderson did; only what she said she was going to do. Considering the state of the evidence, it is clear that Ms. Henderson did visit builders, and notwithstanding her assertion she may have gone there merely to drop off advertising materials, the likelihood is, and it is so found, she went for the purpose of soliciting business.
It also is clear that with the exception of Ms. Henderson and Ms. Johnson, the individuals who processed applications and met with clients were properly licensed as mortgage brokers and were identified as loan officers. Both Mr. Cline and Mr. Henderson were licensed mortgage brokers and supervised,
on a routine basis, the files of the other loan officers including Ms. Henderson and Ms. Johnson. In addition, either Mr. Cline or Mr. Henderson was available for consultation if necessary at all times, as was Mr. Gerber, the underwriter.
All loans written by the loan officers, licensed or otherwise, had to conform to the same standards.
Subsequent to leaving MAC, Ms. Johnson applied for and was, after testing, issued a license as a mortgage broker in Florida by the Department. This occurred after she was identified as operating as an unlicensed broker similar to Ms. Henderson. She, however, was never cited with a Cease and Desist Order.
Mr. Kenneth Moulin worked for MAC from December, 1985 through April, 1987 and, along with his family, owned a 20% interest in the stock of the company. He worked in the Pt. Charlotte office along with Ms. Henderson. His primary job as a licensed loan officer and mortgage broker, was to solicit builders and realtors to refer potential customers.
Mr. Moulin was licensed as a mortgage broker in February, 1986. Prior to getting his license, he was not allowed to negotiate with clients or to solicit business from builders or realtors. Because he had been previously engaged in the construction business, the majority of his contacts were in the building industry and he had a list of builders he regularly visited. Shortly after Ms. Henderson came to work at MAC, Mr. Cline gave half of the builders on Mr. Moulin's list to her as her source list. This had a negative impact on Moulin's income since at about the same time, his salary was discontinued and his compensation was based solely on commission, doubled in rate at that time.
24 Once half of Moulin's builders list was given to Ms. Henderson, she began calling on them, and he was told by many friends in the building industry, that she was soliciting them for referrals.
In March, 1987, Mr. Moulin and Mr. Stillwell, another loan officer, requested of Mr. Cline a different split of the walk-in traffic because Ms. Henderson, whose office was right near the entrance, was pulling in as many of the walk-ins as she could to the exclusion of the other loan officers. After this complaint, Cline arranged a rotating schedule for walk-ins so that each loan officer would get a proportionate share of opportunity.
In Mr. Moulin's opinion, based on his observations of Ms. Henderson and her activities, she, though unlicensed, did much the same type of work he did under his license. She solicited business from builders and realtors outside the office and handled walk-in clients from application through closing. He was not allowed to do any of this prior to being licensed, and he stands by this assertion notwithstanding the fact that numerous forms introduced by Ms. Henderson reflect that prior to the date of his license, he was referred to as loan officer. He explains this as occurring when Cline put his name on forms prepared for other people's loans so that he could get credit for them. Considering the nature of the operation as it appears from the general line of testimony, it is found that this did happen.
Mr. Moulin initiated the investigation which culminated in this hearing because he felt he was being unfairly treated when cases were taken from him and he did not receive the commissions to which he felt he was entitled. In his letter to the Department, he identified Ms. Henderson as an "unlicensed mortgage solicitor." This appears to be an accurate description.
Marcus Combs, testifying for Ms. Henderson, was sent to MAC by a real estate salesman whose broker was reportedly a major owner of the company. As did the others, Mr. Combs observed the rates and points posted on a board in the office lobby and was referred to Ms. Henderson, who he did not previously know, by the receptionist.
During their initial interview, Ms. Henderson discussed the items required for the application and gave him a forms package. At this time, Ms. Henderson was in training and there was a man present throughout the meeting as an observer. At no time during their relationship, did Ms. Henderson attempt to negotiate rates or points, nor did she attempt to sell a particular type of loan. At no time did she solicit Mr. Combs to apply for a mortgage and, because
he was having difficulty qualifying for a loan, suggested he look elsewhere for the mortgage. She actually referred him to another lending institution from which he ultimately got his mortgage.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
This case involves two separate departmental actions. In Case No. 89- 3203, Ms. Henderson contests the Department's issuance of a Cease and Desist Order against her under the provisions of Section 494.072, Florida Statutes which alleged several violations of statute as well as a violation of a departmental rule.
Specifically, the Department alleges that during the period set out, Ms. Henderson engaged in mortgage brokerage activity while employed by MAC without being properly licensed to do so, in violation of Sections 494.04(1), and 494.05(1)(g),(h), and (4), Florida Statutes (1985); Sections 494.055(1) (b) and 494.093(1), Florida Statutes (1987); and Rule 3D-40.031, F.A.C.. It also alleges that Ms. Henderson might still be engaged in such activity. No evidence was presented by the Department to establish that the proscribed activity is currently continuing.
Ms. Henderson has claimed that since the 1985 statutory provisions have been repealed, it is legally improper to use them in the Cease and Desist Order. This argument is without merit. In citing misconduct for the purpose of corrective action, the regulatory agency must cite the statute in effect at the time the alleged misconduct was committed. This was done here and the agency's reference to the 1985 statute was appropriate.
As to the MAC employment, however, Section 494.04(1), Florida Statutes, prohibits anyone from acting as a mortgage broker or mortgage solicitor in Florida without a license therefor. Section 494.03, Florida Statutes makes it a violation of the provisions of Chapter 494 to act as a mortgage broker in Florida without a mortgage broker's license issued by the Department.
Pertinent portions of Section 494.05, Florida Statutes permit denial, suspension or revocation of a license for:
(g) Failure to comply with any of the provisions of this act, or with any lawful order, rule, or regulation made
or issued under the provisions of this act.
(1) (h) Conduct which would be the cause for denial of a license.
Section 494.05(4), Florida Statutes, (1985), provides that the Department may deny a license if it determines that an applicant does not meet all the requirements of Section 494.04 or has violated any provision of Chapter
494. This provision has been superceded by Section 494.052, Florida Statutes, (1987), which permits the same actions to be taken when appropriate.
Section 494.055, Florida Statutes, (1987), permits the discipline of a license for:
(b) Fraud, misrepresentation, deceit, negligence or incompetence in any mortgage financing transaction; and
(1) (1) Acting as a mortgage broker ... without a current, active license or registration.
Under the provisions of Rule 3D-40.031, F.A.C., any person desiring to obtain licensure as a mortgage broker shall submit the documentation outlined in the subordinate provisions thereto.
Section 494.072, Florida Statutes, (1985) and (1987) authorize the Department to:
... issue and serve upon any person a cease and desist order whenever there is reason to believe the person is violating, has violated, or is about to violate any provision of this chapter, any department rule or order issued under this chapter
Certain persons are, however, exempted from the provisions of Chapter
494 by Rule 3D.40.002, F.A.C., which, at subsection (1) thereof provides:
The following persons are exempt from Chapter 494:
Employees of mortgage brokers who have nothing to do with the solicitation of business and who perform strictly routine office duties on a set salary basis, such as clerk, stenographers or typists, who perform the ministerial act of taking or typing applications for a loan under the direction of a mortgage broker.
Subsection (2) of this Section specifically excepts from the exemption provision:
(a) Every person who negotiates a mortgage loan and every person who buys and sells a mortgage loan ....
and
(c) All persons, including real estate brokers, whose services include assistance in securing or arranging for or negotiating a mortgage loan and who receive compensation specifically for the financing service, either directly or indirectly.
The burden of establishing the right to an exemption is on the party claiming the benefit of the exemption. (Section 494.03, Florida Statutes, (1987)
In the instant case, the evidence presented by the Department clearly indicates that during the period in question, Ms. Henderson performed all the in-office activities of licensed mortgage brokers employed by the firm. By itself, this may not have been improper since identical activity was carried on by Ms. Johnson who was thereafter licensed by the Department with the knowledge of her activity. Presumably, both Ms. Johnson and Ms. Henderson were paid a salary for these in-office activities.
Where Ms. Henderson's conduct differed, and that which brought her within the purview of the statute, is her clearly established out-of-office solicitation of real estate brokers and builders. Though Ms. Henderson attempted to cast some doubt on what she was doing outside the office by raising possibilities of alternative activity, she presented no evidence to indicate what she was doing and the testimony of Ms. Johnson and Mr. Moulin must prevail. Her conduct in soliciting business and referrals outside the office brings her squarely within the parameters of the business of mortgage brokering, and she was clearly not licensed to engage in those activities. By the same token, she has not carried her burden to establish her right to an exemption from the licensing requirements. Consequently, she is in violation of the statute and may properly be ordered by the Department to cease and desist those proscribed activities.
In case number 89-3769, Ms. Henderson contests the Department's denial of her application for registration as an associated person with Triple Check Financial Services, Inc..
The Department's denial action was taken under the provisions of Section 517.161(6), Florida Statutes, (1987), which provides, in pari materia:
Registration under Section 517.12 may be denied or any registration granted may be suspended or restricted if an applicant or registrant is charged, in a pending enforcement action or pending criminal prosecution, with any conduct that would authorize denial or revocation under subsection (1).
Registration may be denied under Section 517.161(1) if the department determines the applicant:
(a) Has violated any provision of this chapter or any rule or order made under this chapter.
and
(h) Has demonstrated his unworthiness to transact the business of dealer, investment advisor, or associated person.
"Unworthiness" is established, prima facie, under Rule 3E-600.011(2),
F.A.C. by:
Any ... injunction or adverse administrative order by a state or federal agency regulating ... mortgage brokers, or other related or similar industries
Ms. Henderson has the burden of establishing, by a preponderance of the evidence, her entitlement to the requested registration. She presented no evidence tending to do this. The evidence of record clearly established that based on her activities which were construed to constitute improper engagement in the mortgage brokerage field, the Department entered a Cease and Desist Order which was pending at the time her application was considered and which, under the terms of the pertinent agency rule, renders her unworthy to transact the business in which she has applied for registration. The evidence of record supports the enforcement of the challenged Order and, therefore, she is currently ineligible for registration as an associated person.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that a Final Order be issued by the Department sustaining the Cease and Desist Order entered herein and the denial of Ms. Henderson's application for registration as an associated person with Triple Check Financial Services, Inc.
RECOMMENDED this 24th day of October, 1989, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of October. 1989.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3203 and 89-3769
The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the partiesto this case.
For the Department:
Accepted and incorporated herein.
& 3. Accepted and incorporated herein.
4. - 8. Accepted.
Accepted and incorporated herein.
- 12. Accepted.
Accepted and incorporated herein.
- 17. Accepted and incorporated herein.
Accepted.
Accepted and incorporated herein.
- 23. Accepted and incorporated herein.
Either hearsay evidence or not supported by the record.
Accepted.
& 27. Accepted and incorporated herein.
28. - 30. Accepted.
31. - 34. Accepted and incorporated herein.
35. - 43. Accepted and incorporated herein.
44. - 52. Accepted and incorporated herein.
For Ms. Henderson:
Not a Finding of Fact but a statement of legal authority.
Not a Finding of Fact, (except as to dates of alleged infractions), but a Conclusion of Law.
Not a Finding of Fact.
Not a Finding of Fact but a comment on the Department's legal basis for filing.
Not a Finding of Fact.
5a. - 5e. Not Findings of Fact but comments on the sufficiency of the evidence.
& 7. Not a Finding of Fact but a comment on the sufficiency of the evidence.
Accepted and incorporated herein.
Not a Finding of Fact but a comment on the state of the Department's evidence.
- 12. Accepted and incorporated herein, except to the second sentence of 12 which is unsupported.
First and second sentences accepted. Third sentence is rejected as contra to the weight of the evidence.
Accepted as to the issue of signing of statements but rejected as to the allegation of inaccuracy.
COPIES FURNISHED:
Robert K. Good, Esquire Office of the Comptroller
400 W. Robinson Street, Suite 501 Orlando, Florida 32801
Elise M. Greenbaum, Esquire Office of the Comptroller
400 W. Robinson Street, Suite 501 Orlando, Florida 32801
Rebecca Love Henderson 5635 Bryner Drive
Jacksonville, Florida 32244
Hon. Gerald Lewis Comptroller
State of Florida The Capitol
Tallahassee, Florida 32399-0350
Charles L. Stutts, Esquire General Counsel Department of Banking
and Finance The Capitol
Plaza Level, Room 1302 Tallahassee, Florida 32399
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE
DIVISION OF SECURITIES AND INVESTOR PROTECTION AND DIVISION OF FINANCE
STATE OF FLORIDA, DEPARTMENT OF BANKING AND FINANCE, DIVISION OF FINANCE,
Petitioner.
vs. Case No. 89-3203
REBECCA LOVE HENDERSON, an
individual,
Respondent.
/ REBECCA LOVE HENDERSON, an
individual,
Petitioner,
vs. Case No.89-3769
STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE, DIVISION OF SECURITIES AND INVESTOR PROTECTION,
Respondent.
/
FINAL ORDER
WHEREAS, this matter is before the undersigned for issuance of a Final Order under the provisions of Chapter 120, Florida Statutes, pursuant to the Findings of Fact and Conclusions of Law entered by Arnold H. Pollock, Hearing Officer, Division of Administrative Hearings. Said Recommended Order was filed as a result of a final administrative hearing held in Punta Gorda, Florida on September 20, 1989, at which time testimony and other evidence was presented by the Department and the Respondent.
NOW THEREFORE, the undersigned having reviewed the Administrative Charges and Complaint filed against the Respondent which farmed the basis of this action, having reviewed and evaluated the "Notes" filed by the Respondent (hereinafter referred to as "Exceptions"), and having reviewed the Recommended Order filed by Arnold H. Pollock, Hearing Officer the following rulings are made pursuant to Section 120.59(2), Florida Statutes.
RESPONDENT'S EXCEPTIONS TO RECOMMENDED ORDERS OF THE DEPARTMENT AND DIVISION OF ADMINISTRATIVE HEARINGS
Respondent disagrees with the Recommended Orders filed by the Department and the Hearing Officer, Division of Administrative Hearings, with respect to certain findings of fact and conclusions of law. As to the Department's Recommended Order, Findings of Fact, Respondent contests in Exceptions IA 1 through 10 the factual findings made by the Department in paragraphs #5, 6, 15, 16, 18, 22, 24, 26 and 29. As to the Department's Recommended Order, Conclusions of Law, Respondent argues in Exception IA 11 that the Department improperly charged her with violating statutes which were not in effect at the time she engaged in unlicensed mortgage brokerage activity, and in Exception IB
that the Department inferred that the Respondent's conduct in processing mortgage loans constituted the negotiation of mortgage loans. In Exceptions IB
through 7, Respondent argues that the Department submitted improper testimony to the Hearing Officer and failed to prove that the Respondent engaged in unlicensed mortgage brokerage activity.
As to the Hearing Officer's Recommended Order, Respondent contests in Exceptions IIA 1 through 12 the factual findings made by the Hearing Officer in paragraph #7 Preliminary Statement, 4, 7, 12, 13, 16, 17, 18, 23, 24, 25, 26, and 27. As to Conclusions of Law, Respondent argues in Exception #13a through d that the Department improperly charged her with violating statutes which were not in effect at the time she engaged in unlicensed mortgage brokerage activity, and that no evidence supported the conclusion that the Respondent engaged in unlicensed mortgage brokerage activity. In Exceptions IIB 1 and 2, the Respondent argues that unsupported hearsay was relied on by the Hearing Officer in his Recommended Order.
RULINGS ON EXCEPTIONS
Respondent's Exceptions IA 1 through 10 to the Department's factual findings, as enumerated in paragraphs #5, 15, 16, 18, 22, 24, 26, and 29 are DENIED. A review of the record reveals that there is competent substantial evidence to support these enumerated factual findings, which were accepted and incorporated by the Hearing Officer in his Recommended Order. Additionally, Exceptions 2, 6, and 8 are irrelevant. Respondent's Exceptions to the Conclusions of Law, Exceptions IA 1 and IB 1 through 7 with respect to the
Department's Recommended Order are inaccurate and unpersuasive, and therefore DENIED. The legal analysis set forth by the Department is the correct application of the law. Additionally, Exceptions IA 11 and IB 1, 3 and 5 are irrelevant, and IB 5 is cumulative.
Respondent's Exceptions to the Hearing Officer's Recommended Order, Factual Findings, Exceptions IIA 1, 2 and 4 through 12, enumerated in paragraphs 7
Preliminary Statement, 4, 7, 13, 16, 17, 18, 23, 24, 25, 26 and 27 are DENIED. A review of the entire record reveals that there is competent substantial evidence to support the enumerated factual findings. The Hearing Officer's factual findings, therefore, may not be overruled. See Howard Johnson Company
v. Kilpatrick, 501 So.2d 59 (1st DCA 1987); Heifetz v. Department of Business Regulation, 475 So.2d 277 (1st DCA 1985); School Board of Leon County v. Hargis,
400 So.2d 103 (1st DCA 1981); McDonald v. Department of Banking and Finance, 346 So.2d 569 (1st DCA 1977); and Section 120.57(1)(b), 9., Florida Statutes. Additionally, Exceptions IIA 1, 4, 5, 6, 7, 8, 10 and 12 are irrelevant.
Respondent's Exception IIA 3, enumerated in paragraph #12 is accepted and incorporated herein.
Respondent's Exceptions to the Conclusions of Law, Exceptions IIB 13a through d, and IIB 1 and 2 are unpersuasive. The legal analysis set forth by the Hearing Officer is the correct application of the law, and these Exceptions are DENIED.
The Hearing Officer's Findings of Fact, based on competent, substantial evidence, are hereby approved and adopted herein, with the exception of Finding of Fact #12. The evidence presented at Final Hearing established that, with respect to Finding of Fact #12, Kimberly Lynn Johnson worked for Mortgage Acceptance Corporation from May 1986 to August 1987. The undersigned rejects the factual finding that Ms. Johnson worked for Mortgage Acceptance Corporation from May 1986 to August 1986.
FINDINGS OF FACT
The Hearing Officer's Conclusions of Law, based upon his Findings of Fact, are hereby approved and adopted herein as being correct applications of the law with the following exception:
The undersigned rejects this Hearing Officer's legal conclusion that the Respondent's conduct in performing all the in-office activities of licensed mortgage brokers employed by Mortgage Acceptance Corporation may not have been improper as identical activity was engaged in by Ms. Johnson who was licensed by the Department subsequent to engaging in this unlicensed activity with Department knowledge of this unlicensed activity. The in-office activities engaged in by both Ms. Johnson and Ms. Henderson constitute unlicensed mortgage brokerage activity which violates Chapter 494, Florida Statutes.
The undersigned, having approved and incorporated herein the Recommended Order filed by Arnold H. Pollock, Hearing Officer, Division of Administrative Hearings and being otherwise fully advised in the premises, hereby
ORDERS THAT:
The Order to Cease and Desist issued by the Department on May 3, 1989 against Respondent Henderson is hereby final.
Respondent Henderson's Application for registration as an Associated Person with Triple Check Financial Services, Inc., is hereby denied.
Respondent Henderson shall henceforth strictly comply with Chapter 494, Florida Statutes, and the duly promulgated Rules of the Department.
DONE AND ORDERED at Tallahassee, Leon County, Florida, this 28th day of November, 1989.
GERALD LEWIS as Comptroller of the State of Florida and Head of the Department of Banking and Finance
NOTICE OF RIGHT TO JUDICIAL REVIEW
The Respondent is advised that within thirty (30) days of the date of rendition of this Final Order she may seek judicial review of the same by filing a Notice of Appeal with the Clerk of the Department of Banking and Finance, Legal Section, The Capitol, Tallahassee, Florida 32399-0350 and by filing a copy of such notice of Appeal together with the prescribed filing fees with the District Court of Appeal, First District, or with such District Court of Appeal which may have jurisdiction over this cause.
PLEASE BE GOVERNED ACCORDINGLY.
ELISE W. GREENBAUM
Assistant General Counsel Office of the Comptroller
400 West Robinson Street Suite 501
Orlando, Florida 32801
(407) 423-6115
Florida Bar No 0477982
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail to Arnold H. Pollock, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by Certified U.S. Mail to Rebecca Love Henderson, 5635 Bryner Drive, Jacksonville, Florida 32244 this 28th day of November, 1989.
ELISE M. GREENBAUM
Assistant General Counsel Office of the Comptroller
400 West Robinson Street Suite 501
Orlando, Florida 32801
(407) 423-6115
Florida Bar No. 0477982
| Issue Date | Proceedings |
|---|---|
| Oct. 24, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 28, 1989 | Agency Final Order | |
| Oct. 24, 1989 | Recommended Order | Unlicensed individual who performed all functions of a mortgage broker had to be licensed. Her being subject to a C&D order for that supports denial of license |
DEPARTMENT OF BANKING AND FINANCE vs NATIONAL MORTGAGE BANKERS, INC., 89-003203 (1989)
B AND B MORTGAGE EQUITY AND BARRY YANKS vs DEPARTMENT OF BANKING AND FINANCE, 89-003203 (1989)
ALTERNATE MORTGAGE CORPORATION vs DIVISION OF FINANCE, 89-003203 (1989)
DEPARTMENT OF BANKING AND FINANCE vs. ASPEC, INC., 89-003203 (1989)
