STATE OF FLORIDA DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION FLORIDA REAL ESTATE APPRAISAL BOARD FLORIDA DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION, PL DIVISION OF REAL ESTATE, ( 4 . 2 YO Petitioner, v. CASE NO. 2007058049 ANTHONY PENA, Respondent. ADMINISTRATIVE COMPLAINT The Florida Department of Business & Professional Regulation, Division of Real Estate ("Petitioner") files this Administrative Complaint against Anthony Pena(“Respondent"), and alleges: ESSENTIAL ALLEGATIONS OF MATERIAL FACT 1. Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, including Section 20.165 and Chapters 120, 455 and 475 of the Florida Statutes, and the rules promulgated thereunder. 2. Respondent is currently a Florida state certified residential real estate appraiser having been issued license 627 in accordance with Chapter 475 Part II of the Florida Statutes. 3. The last license the State issued to Respondent was as an inactive state certified residential real estate appraiser at 5402 HAFREAB\PENA. ANTHONY doc ! FDBPR v. Anthony Pena Case No. 2007058049 Administrative Complaint W. Flagler Street, Miami, Florida 33134 under suspension. 4. On or about June 20, 2007, Respondent developed and communicated an appraisal report (Report) on a property commonly known as 10436 Trianon Place, Wellington, Florida 33467 (Subject Property) valuing the Subject Property at $1,550,000 (the same as the sales contract price). A copy of the Report as obtained from the lender is attached hereto and incorporated herein as Administrative Complaint Exhibit 1.Respondent failed to maintain a copy of the Report as provided to the lender in the Subject Property work file. 5. Respondent failed to disclose in the Report that the Subject Property had been listed three times at $899,000, most recently within two weeks of the effective date of the Report. 6. When confronted by the Petitioner's investigator about the failure to include the MLS listing history in the Report, Respondent stated that he believed the MLS listing, a copy of which Respondent had in his work file, was a “mistake.” Respondent acknowledged making no effort to contact the owner of the Subject Property, who was also the listing agent, for clarification of the “mistake.” A copy of the MLS listing for the Subject Property is attached hereto and incorporated herein as Administrative Complaint Exhibit 2. H.\FREAB\PENA.ANTHONY.doc 2 FDBPR v. Anthony Pena Case No. 2007058049 Administrative Complaint 7. Respondent stated in the Report that he analyzed the $1,550,000 sales contract for the Subject Property and maintained in the work file a copy of that contract, allegedly signed by the seller. 8. Respondent did not contact the seller directly about the sales contract. 9. Petitioner's investigator interviewed the seller, who stated that the contract price was $870,000 and that she had not signed the sales contract that was in Respondent's work file. 10. A copy of the sales contract from Respondent’s work file is attached hereto and incorporated herein as Administrative Complaint Exhibit 3. 11. Petitioner’s investigator also questioned Respondent concerning the increase in value of the Subject Property from a June 2005 sale for $619,336 to the June 2007 value of $1,550,000. Respondent orally stated that the. Subject Property had been purchased as “bare walls” in need of repair or renovation, and that the owner had made substantial alterations that increased the value of the Subject Property, which assertion the owner also refuted in her interview with Petitioner’s investigator. 12. The Complainant, a lender's representative, acquired a review appraisal report valuing the Subject Property as of the H:\FREAB\PENA.ANTHONY doc 3 FDBPR v. Anthony Pena Case No. 2007058049 Administrative Complaint effective date of the Report at $900,000. The review appraiser also disputed the range and predominant values of properties in the Subject Property’s neighborhood. 13. Respondent was: previously disciplined by Final Order of the Board dated March 18, 2008, in case number BPR 2008-02338, a copy of which is attached hereto and incorporated herein as Administrative Complaint Exhibit 4. COUNT ONE Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal, specifically Standards Rule 1-1(a} and (b), or other provision of the Uniform Standards of Professional Appraisal Practice (2006) in violation of Section 475.624(14), Florida Statutes. COUNT TWO Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal, specifically Standards Rule 1-5(a) and (b), or other provision of the Uniform Standards of Professional Appraisal Practice (2006) in violation of Section 475.624(14), Florida Statutes. COUNT THREE Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal, H:\FREAB\PENA.ANTHONY.doc 4 FDBPR v. Anthony Pena Case No.. 2007058049 Administrative Complaint specifically Standards Rule 1-6(a), or other provision of the Uniform Standards of Professional Appraisal Practice (2006) in violation of Section 475.624(14), Florida Statutes. COUNT FOUR Based upon the foregoing, Respondent is guilty of having had a certification or registration suspended, revoked, or otherwise acted against in any jurisdiction in violation of Section 475.624(6), Florida Statutes. COUNT FIVE Based upon the foregoing, Respondent is guilty of having failed to exercise reasonable diligence in developing an appraisal report in violation of Section 475.624(15), Florida Statutes. WHEREFORE, Petitioner respectfully requests the Florida Real Estate Appraisal Board, or the Department of Business and Professional Regulation, as may be appropriate, to issue a Final order as final agency action finding the Respondent(s) guilty as charged. The penalties which may be imposed for*violation(s) of Chapter 475 of the Florida Statutes, depending upon the severity of the offense(s), include: revocation of the license, registration, or certificate; suspension of the license, registration or certificate for a period not to exceed ten (10) years; imposition of an administrative fine of up to $5,000 for each count or H:\FREAB\PENA.ANTHON Y.doc 5 FDBPR v. Anthony Pena Case No. 2007058049 Administrative Complaint offense; imposition of investigative costs; issuance of a reprimand; imposition of probation subject to terms including, but not limited to, requiring the licensee, registrant, or certificate holder to complete and pass additional appraisal education courses; publication, or any combination of the foregoing which may apply. See Section 475.624, Florida Statutes and Rule 61J1-8.002, Florida Administrative Code. The penalties which may be imposed for violation(s) of Chapter 455 of the Florida Statutes, depending upon the severity of the offense(s), include: revocation of the license, registration, or certificate; suspension of the license, registration, or certificate for a period not to exceed ten (10) years; imposition of an administrative fine of up to $5,000 for each count or offense; imposition of investigative costs; issuance of a reprimand; imposition of probation subject to terms including, but not limited to, requiring the licensee, registrant, or certificate holder to complete and pass additional appraisal education courses; publication; restriction of practice; injunctive or mandamus relief; imposition of a cease and desist order; or any combination of the foregoing which may apply. See Section 455.227, Fla. Statutes and Florida Administrative Code Rule 61J1-8.002. HAFREAB\PENA.ANTHONY doc. 6 FDBPR v. Anthony Pena Case No. 2007058049 Administrative Complaint SIGNED this LO day of , 2008. Florida Department of B and Professional Regulation Thomas O’Bryant, JY., Director, Division of Real Estate ATTORNEY FOR PETITIONER ernant of Prof Division of Real Estais Division oa€ Legal Section 400 W. Robinson Street, N801 Orlando, Florida 32801-1757 (407) 481-5632 (407) 317-7260 - FAX PCP: PA/MR 6/08 NOTICE TO RESPONDENTS PLEASE BE ADVISED that mediation under Section 120.573 of the Florida Statutes, is not available for administrative disputes involving this type of agency action. PLEASE BE FURTHER ADVISED that pursuant to this Administrative Complaint you may request, within the time allowed by law, a hearing to be conducted in this matter in accordance with Sections 120.569 and 120.57 of the Florida Statutes; that you have the right, at your option and expense, to be represented by counsel HAFREAB\PENA.ANTHONY doc 7 FDBPR v. Anthony Pena Case No. 2007058049 Administrative Complaint or other qualified representative in this matter; and that you have the right, at your option and expense, to take testimony, to call and cross-examine witnesses, and to have subpoena and subpoena duces tecum issued on your behalf if a formal hearing is requested. PLEASE BE FURTHER ADVISED that if you do not file an Election of Rights form or some other responsive pleading with the Petitioner within twenty-one (21) days of receipt of this Administrative Complaint, the Petitioner will file with the Florida Real Estate Appraisal Board a motion requesting an informal hearing and entry of an appropriate Final Order which may result in the suspension or revocation of your real estate license or registration. Please see the enclosed Explanation of Rights and Election of Rights form. H:A\FREAB\PENA.ANTHONY.doc 8 Appraisats of South Florida, Inc. {305} 595-3304 APPRAISAL OF REAL PROPERTY LOCATED AT: 10436 Trianon Place Versailles PUD Lot 209 Wellington , FL 33467-8074 FOR: Trust USA Mortgage Corp. 999 Brickell Av. Suite 508 Miami, FL 33131 BY: Anthony Petia, St-Cert. Res. REA ADMINIST Reg f Farm GHS-—"WaRTOTA. apa sctare by aa mode, ic, — 1-S00ALABODES 55 wih BAPE #P. Appraisals ot South Florida, inc, (305) 595 -2304 File No. TP-10436! Page #3] Summary Appraisal Report Uniform Residential Appraisal Report Fie # TP-10436 epait is to provide the lender/client with an accurate, and ade Supported, opinion of the market value of the subject property. City Wellington State FL Zip Code 33467-8074 Owner of Public Record Gary S Levinger &W Jane S County Palm Beach Tar Year_2006 RE. Taxes $_12,130.7 Map Reference 1-44 R-41 $-24 Census Tract 0077.09 Special Assessments $ None Known EX PuD__HOA$ 415.95 -"] peryear DX) per month {Leasehold £7) Other (describe) a Euan Type "Ss Purchase Tanszofan 1 [ Retieance Transaction _["] Offer | describe) Lender/Client_ Trust USA Mortgage Com. Address 999 Brickell Avenue, Suite 208, Miami, FL. 33129 Is the. subject property currently offered for sale or has it been offered for sale in the twelve months prior te the effective date of this appraisal? Tves Ge: No Report data source(s) used, offering price(s), and date(s}, LJ did not analyze the contract for sale far the subject purchase transaction. ‘Explain the results of the analysis of the contract for sale or why the analysis was nat performed. The subject's purchase ‘a € agreement was analyzed and reviled a typical financial assistance and concessions between the seller and the E spective buyer. Typical arms-length transaction. Contract Price $ 1,550,000 _ Dale of Contract 06/14/2007 __ {s the property seller the owner of pub ? i 3 15 there any financial assistance (oan charges, sale concessions, gift or downpayment assistance, etc.) to be paid by any party an behalf of the borrower? Beg Ii Yes. report the total dollar amount and describe the items to be paid. $46,500 The seller wit contribute 3% towards buyers closing cost. Rural Property Values Bo Were easing Stable [ Dectining _ fea ce | 25-75% [_) Under 25% [Demand/Supply |_| Shortage bse Ipp $ (000) Growth {| Rapid [x] Stable [7 Stow | Marketing Time [°) Under 3 mths [x] 3-6 mths [Over 6mtts| 700 Low Neighborhood Boundaries The subject is bound to the North by W Forest Hil Blvd, to the South by Lake | 2.4Mial High 20 | Commercial §% Worth Road, to the East by Expwy 441 and to the West by 120th Avenue S. [oma Pred. 5+ | Other % fej Neighbottiood Description The subject i located in a new residential neighbortiood consisting mostly of single family style homes similar to the subject Z in age, size-and appeal. The subject neighborhood provides a good environment for the house being appraised. There are no factors that will negatively affect the marketability of the subject property. ‘Market Conditions (including support for the above conclusions) The. subject is in a market place in which residential properties similar to the subject take approximately 3-6 months to sell, Demand _and Supply are in balance with a stable growth rate. These figures were obtained from the appraisers ig observation of the marketing time for listings and sales within the immediate area and the ratio of the number of listings to sales. Pp Sires No survey provided. Asea_9,447 Sqft Shape Rectangular View IntRes: Specific Zoning Classification PUD Zoning Description Planned Unit Development Zoting Compliancs XJ Legal |”? Legal Nonconforming (Grandfathered Use) [_] No Zoning [| Wegal (describe) {s the highest and best use.of subject property as impraved {or as proposed per plans and specifications) the present use?