The Issue Whether Petitioner was properly denied mortgage assistance through Florida Housing Finance Corporation's ("Florida Housing") Hardest-Hit Fund Elderly Mortgage Assistance ("ELMORE") program based on a conviction for fraud allegedly in connection with a real estate transaction.
Findings Of Fact The Parties Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes, to promote the public welfare by administering the governmental function of financing or refinancing housing. For purposes of this proceeding, Florida Housing is an agency of the State of Florida. Florida Housing is also considered the state's housing finance agency which means Florida Housing, at times, conducts business as if it were a financial institution. Florida Housing administers the Hardest-Hit Fund, using funds appropriated by the United States Congress through the Emergency Economic Stabilization Act to help stabilize housing markets and prevent foreclosures. The Hardest-Hit Fund comes directly to Florida Housing from the United States Treasury through a Housing Finance Agency ("HFA") Participation Agreement. The ELMORE program is one of the programs created under the umbrella of the Hardest-Hit Fund. The ELMORE program is designed to assist senior homeowners in Florida who are facing foreclosure due to the inability to pay property charges such as property taxes, homeowners insurance, and homeowners or condo association dues after the homeowner was paid all of the equity under a reverse mortgage. The HFA agreement is a summary guideline for the ELMORE program and its general requirements. The stated goal of the program is to help senior homeowners remain in their homes. The Summary Guidelines include certain borrower eligibility criteria, property/loan eligibility criteria, and program exclusions, among other guidelines. The program exclusions reference the "Dodd-Frank exclusion for having been convicted of a mortgage-related felony in the past ten years." The Dodd-Frank Act exclusion for criminal applicants is codified 12 U.S.C. § 5220b, and states in part: (d) Prevention of qualification for criminal applicants (1) In general No person shall be eligible to begin receiving assistance from the Making Home Affordable Program authorized under the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5201 et seq.), or any other mortgage assistance program authorized or funded by that Act, on or after 60 days after July 21, 2010, if such person, in connection with a mortgage or real estate transaction, has been convicted, within the last 10 years, of any one of the following: Felony larceny, theft, fraud, or forgery. Money laundering. Tax evasion. On or about February 27, 2017, Betty Baldwin, Power of Attorney for Tolz, submitted an application for mortgage assistance through Florida Housing's Hardest-Hit Fund for ELMORE benefits. On or about May 11, 2017, the application was denied. On or about November 8, 2018, Tolz submitted another application for mortgage assistance from the ELMORE program. On December 5, 2018, Florida Housing's Director of Homeownership Programs, David Westcott, issued a letter with an ineligibility determination to Tolz, which included a Notice of Rights.1/ Mr. Westcott is ultimately responsible for the final eligibility determinations on Hardest-Hit Fund mortgage assistance applications. The Denial of ELMORE Program Benefits Mr. Westcott denied Tolz's application for ELMORE program funds because she had, what Mr. Westcott determined to be, a disqualifying felony conviction in connection with a real estate transaction in violation of the Dodd-Frank Act provision. Mr. Westcott testified that pursuant to the HFA agreement with the United States Treasury, Florida Housing is prohibited from using ELMORE funds to assist applicants that have a disqualifying Dodd-Frank Act conviction. During the period of 2003 through 2010, Tolz used her position as a fiduciary in the role of bankruptcy trustee, receiver, and personal representative to misappropriate millions of dollars from bankruptcy estates, receiverships, and other matters, by writing or causing the writing of unauthorized checks from a variety of fiduciary accounts which contained funds she was appointed to safeguard. Tolz then used the misappropriated money for her own benefit and to conceal her previous misappropriations by restoring the balances of other fiduciary accounts from which she had previously taken funds in a Ponzi scheme framework. To conceal this theft, Tolz falsified documents and used a fictitious bank account. On or about December 12, 2011, Tolz was convicted in Broward County Circuit Court of grand theft in the first degree. Tolz was convicted on or about July 27, 2011, in the United States District Court for the Southern District of Florida of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. To secure a plea deal and in order to bolster her claim that her sentence should be reduced from the federal guidelines, prior to sentencing, Tolz surrendered five real estate properties, which she owned, to the United States government. The value of these properties was then used to offset and lessen Tolz's restitution obligation to her victims. Tolz understood that these properties would not be accepted to satisfy her restitution obligation unless they were purchased, mortgaged, or improved with the assets of her victims. In the federal criminal case, Tolz executed a Factual Basis Supporting Change of Plea ("Factual Basis") on or about April 15, 2011. Tolz agreed not to contest the information in the Factual Basis. Further, Tolz agreed that it provided a sufficient factual basis for her plea of guilty in the case, and had the case proceeded to trial, that the United States would have proven the facts beyond a reasonable doubt. Paragraph 11 of the Factual basis states: MARIKA TOLZ, directly or indirectly, utilized funds obtained through the fraudulent scheme to purchase, maintain and improve real properties, including, but not limited to the following real properties: 2344 North Federal Highway, Hollywood, Florida; 1804 Sherman Street, Hollywood, Florida; 704 SE 3rd Avenue, Hallandale, Florida; 815 SW 30th Street, Ft. Lauderdale, Florida; and 3031 North Ocean Blvd, Apartment 403, Fort Lauderdale, Florida 33308. In making the ineligibility determination on Tolz's application for ELMORE program funds, Mr. Westcott determined that Tolz's conviction was in connection with a real estate transaction because Tolz agreed in the Factual Basis that she used funds obtained through the fraud to "purchase, maintain and improve real properties." Florida Housing determined that Tolz's conviction disqualified her from receiving mortgage assistance from the ELMORE program because: As part of the Hardest-Hit Fund, the ELMORE program funds are authorized by the Emergency Economic Stabilization Act of 2008; Tolz was convicted of the enumerated offense of a "fraud;" The conviction occurred on or about July 21, 2011, which is within the last ten years; and The conviction was in connection with a real estate transaction because Tolz used funds obtained through the fraud to "purchase, maintain and improve real properties." "In Connection With" A Mortgage or Real Estate Transaction Tolz contends that her crimes were not "in connection with a mortgage or real estate transaction." At both her sentencing hearing in federal court and at the final hearing in this proceeding, Tolz stated that she owned these surrendered properties for 30 or 40 years. Tolz now argues that because she owned these properties well before the fraud of which she was convicted occurred, no mortgage or real estate transaction was involved in the crime and, therefore, she should not be disqualified from ELMORE benefits. Tolz now claims she surrendered these properties to facilitate the forfeiture on the advice of counsel, that she was heavily medicated at the time of sentencing, and that the prosecutor and the court knew that these properties were not associated with her underlying crimes. Tolz admitted at final hearing that she surrendered these properties to do an end-run around the system to reduce the more than two million dollars she owed in restitution. However, in that same sentencing hearing, the prosecutor representing the United States stated "I'll also indicate, although it's clear from the record, that notwithstanding the picture that she's somehow a pauper, or was a pauper, the fact of the matter is the forfeiture properties indicated in the forfeiture which she agreed to were her properties, at least partially paid for by the offense."2/ An impartial reading of the sentencing transcript demonstrates that during sentencing the United States believed that the properties involved in the criminal forfeiture were, in part, paid for by the crime for which Petitioner was convicted. The undersigned finds the facts, as offered by Tolz in her 2011 "Factual Basis" offered in support of a sentence reduction and reduction of her restitution obligation, to be more credible than her denial at final hearing that these properties were not purchased, improved, or maintained with the funds from her crimes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing enter a final order dismissing Petitioner's Amended Petition. DONE AND ENTERED this 30th day of April, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2019.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent's Florida real estate license should be subjected to disciplinary sanctions based upon the charge that the Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with licensing and regulating the practice of real estate salespersons and brokers licensed pursuant to the authority of Chapter 475, Florida Statutes, and rules promulgated pursuant thereto. The Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and related rules. The Respondent, Shirlee Jeanette Pearson, is and at all times material hereto, a licensed real estate salesperson, having been issued Florida license number 0389549, pursuant to Chapter 475, Florida Statutes. The last license issued was as a non-active salesperson with a home address of 6124 The Oaks Lane, Pensacola, Florida 32504-7361. On or about December 4, 1989, the Respondent entered into a Listing Agreement with Alexis Reginald Harris and Margaret Harris (hereinafter "Sellers"). The Listing Agreement was executed by the Sellers and the Respondent on behalf of Old South Properties, Inc. The Agreement allowed the Respondent to represent the Sellers in the prospective sale of their property to Michael Jones. Subsequent to showing the property to Mr. Jones, the Respondent presented the Sellers with a Contract for Sale and Purchase dated December 6, 1989. The Contract reflected an earnest money deposit of $500.00 to be held by Old South Properties, Inc. The Contract was dated December 6, 1989 and included a provision whereby Mr. Jones would obtain conventional financing. On or about December 19, 1989, the Contract was amended to allow for veterans administration financing. The Contract was amended on or about January 17, 1990 to provide for a cash sale. Before agreeing to the amendments to the Contract, the Sellers demanded an additional $2,500.00 earnest money deposit. The amended Contract was initialed by the Sellers and taken by the Respondent to the prospective purchaser, Mr. Jones. Mr. Jones initialed the changes, signifying agreement to them. The Contract, as amended, reflected an earnest money deposit in the total amount of $3,000.00 to be held by Old South Properties, Inc. The Contract was thus finalized and the Sellers vacated the property around the first of February, 1990 in anticipation of the closing of sale, which was scheduled for the end of February. The Respondent was aware that the Sellers had moved from the property in expectation of the sale. On or about February 25, 1990, the Respondent told the Sellers that she had never actually received the additional $2,500.00 earnest money deposit called for by the January 17, 1990 amendments to the Contract. This was the first time that the Sellers became aware that the earnest money deposit had not been received by the Respondent. When the Respondent advised them that she had not received the earnest money deposit, as provided for in the Contract, she assured them that the closing would still occur as scheduled on February 28, 1990. On February 28, 1990, the Sellers signed the necessary documents to close the sale and left town. The Respondent told the Sellers that Mr. Jones would sign the papers later on the same day. The Sellers left the keys to the house with their daughter, who would remain in town, upon their departure. The Sellers advised the Respondent that Mr. Jones could obtain the keys from their daughter when the closing documents had all been signed. Subsequent to February 28, 1990, the Sellers' daughter called and advised them that the sale had not closed. The Sellers thereafter retained an attorney, and a civil lawsuit was filed against Old South Properties, Inc. and the Respondent. The court in that case found that the Respondent had breached her fiduciary duty to the Sellers and awarded damages accordingly. Ron Giles ("Giles") was employed as vice president and sales manager of Old South Properties, Inc. at the time the Respondent was employed there as a sales associate. Sometime in February of 1990, the Respondent went to Giles and informed him that she had acknowledged receipt of a $3,000.00 earnest money deposit on the Harris/Jones Contract, but, in fact, had only received $500.00. Giles told the Respondent to immediately contact the Sellers and advise them that the $2,500.00 earnest money deposit had not been received. The Respondent showed Giles a $2,500.00 Promissory Note that she had obtained from Mr. Jones, representing the deposit amount that she had not actually received. Giles went to James Porter, the broker for Old South Properties, Inc., and advised him of the problem with the Harris/Jones Contract. Mr. Porter is now, and was at all times material to the allegations of the Complaint, the President of and the qualifying broker for Old South Properties, Inc. Mr. Porter hired the Respondent as a sales associate for Old South Properties, Inc. sometime in August of 1989. Upon learning of the problem with the Harris/Jones transaction, Mr. Porter had a meeting with the Respondent; and the Respondent admitted to Mr. Porter that she had not informed the Sellers that she had not received the $2,500.00 additional earnest money deposit called for by the amended Contract. When the transaction failed to close, Mr. Porter made efforts to resolve the Sellers' complaint, but was unsuccessful; and the lawsuit ensued. The Sellers were awarded damages by the court, and Mr. Porter paid the Final Judgment entered against Old South Properties, Inc. and the Respondent. The Respondent then agreed to pay Mr. Porter back for the funds he expended in satisfying the judgment; however, the Respondent never actually paid Mr. Porter.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, recommended that the Respondent be found guilty of having violated Subsection 475.25(1)(b), Florida Statutes, as charged in the Administrative Complaint, by being guilty of culpable negligence, that the Respondent's real estate license be suspended for a period of three (3) years, and that the Respondent be required to pay an administrative fine in the amount of $1,000.00. RECOMMENDED this 1st day of July, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4932 Petitioner's Proposed Findings of Fact 1-28. Accepted. COPIES FURNISHED: Darlene F. Keller, Director DPR-Division of Real Estate P.O. Box 1900 Orlando, FL 32802-1900 Jack L. McRay, Esq. General Counsel Department of Professional Regulation 1940 North Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Janine B. Myrick, Esq. Senior Attorney Department of Professional Regulation Division of Real Estate P.O. Box 1900 Orlando, FL 32802-1900 Ms. Shirlee Jeanette Pearson 6125 The Oaks Lane Pensacola, FL 32504-7361
Findings Of Fact In the fall of 1973, Mr. and Mrs. Delmar D. Carter purchased the Buccaneer Motel and Woodside Apartments [the motel] from C.E.K., Inc., whom respondents represented in the sale. Respondents agreed to accept less from C.E.K., Inc., as their commission on the sale, that they might have otherwise, because the Carters agreed to give respondents the exclusive right to resell the motel for a period of five years. Two years after they purchased the motel, the Carters asked O.B. Linkous to try to sell the motel, but the Carters sell held the motel when the resale agreement expired in late 1978. One of the obligations assumed by the Carters in exchange for the motel was secured by a mortgage that C.E.K., Inc., had executed in favor of O.B. Linkous Realty, Inc., on December 14, 1972. Petitioner's Exhibit No. 2. This assumed obligation required the Carters to make certain monthly payments to the corporate respondent including a payment of $862.19 on January 1, 1979. Under the mortgage agreement, the entire principal (originally $88,247.93) would become due if a "default continue for a space of 30 days." Petitioner's Exhibit No. 2. On January 25, 1979, Mr. Carter delivered to Mr. Linkous a check in the amount of $862.19, Petitioner's Exhibit No. 1, as payment of the amount due on January 1, 1979. When he handed the check to respondent Linkous, Mr. Carter told him that the funds in the account on which the check was drawn were insufficient for the drawee to pay the check, but that he would deposit sufficient funds on the following day. Respondent Linkous answered that he saw no problem since he intended to deposit the check in his own account in another bank and assumed it would be at least a day before the check was presented to the drawee. On the following day, Mr. Carter deposited $865.96 in the account on which the check was drawn. Petitioner's Exhibit No. 3. On January 31, 1979, the balance in the account was $1,000.32. Petitioner's Exhibit No. 3. Instead of depositing the check, respondent Linkous took the check, on the same day he received it, to the Flagship First National Bank of Ormond Beach, on which it was drawn, and persuaded a teller there to stamp it so as to indicate that it had been dishonored because sufficient funds were not on deposit. On February 7, 1979, a mortgage foreclosure complaint was filed against the Carters and C.E.K., Inc., (as holder of a junior mortgage), in which respondents' attorney alleged that the Carters had "defaulted under the note and mortgage by failing to pay the payment due January 1, 1979, and all subsequent payments." Petitioner's Exhibit No. 2. The Carters retained counsel who filed an answer and counterclaim in which it was alleged, inter alia, that Linkous "deliberately with premeditated design, deceived and tricked [the Carters]." Petitioner's Exhibit No. 2. After these pleadings had been filed, the Carters agreed to respondents' counsel's suggestion that they grant the corporate respondent the exclusive right to sell the motel for another five-year period in exchange for an end to the litigation, and executed an agreement to that effect. Petitioner's Exhibit No. 6. The parties stipulated that both respondents hold real estate licenses issued by petitioner.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondents' licenses for a period of five years. DONE AND ENTERED this 10th day of June, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 10th day of June, 1981. COPIES FURNISHED: S. Ralph Fetner, Jr., Esquire 130 North Monroe Street Tallahassee, Florida 32301 Howard Hadley, Esquire 827 Deltona Boulevard Deltona, Florida 32725
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Phyllis I. Reaves is now and was at all times material to these proceedings, a licensed real estate salesman in the State of Florida having been issued license number 0351816. Annette J. Ruffin is now and was at all times material to these proceedings, a licensed real estate broker having been issued license number 0076385. From May 2, 1983 to October 18, 1984, Respondent Phyllis I. Reaves was licensed and operating as a real estate salesman in the employ of Respondent Annette J. Ruffin, as broker, c/o International Investment Development Center, Belleair, Florida or Century 21 A Little Bit Country, Brandon, Florida. At all time material hereto, Respondent Phyllis I. Reaves was a licensed mortgage broker in the State of Florida. DOAH CASE NO. 85-1008/1138. COUNT I No evidence was presented concerning the allegations in Count I.. COUNT II No evidence was presented concerning the factual allegations of Count II. COUNT III No evidence was presented concerning the allegations of Count III. COUNT IV On June 10, 1983, Respondent Reaves entered into a real estate sales contract with Emmett K. Singleton, as seller to purchase certain real estate through the use of a land trust. The sales contract listed a total purchase price of $67,000. C-21 A Little Bit Country was listed on the contract as escrow agent of the binder deposit. The property had an existing first mortgage of approximately $33,854. Respondent Reaves agreed to assume the new mortgage and requested that Mr. Singleton obtain a second mortgage in the principal amount of $26,400. Reaves agreed to assume this second mortgage amount while allowing Mr. Singleton to keep the proceeds. Mr. Singleton agreed that the balance of the sales price would be paid via a purchase money mortgage to Respondent Reaves in the principal amount of $9,643.99. Respondent Phyllis I. Reaves executed a Hold Harmless and Indemnity Agreement which read as follows: "Phyllis Reaves does agree to hold Emmett K. Singleton harmless and does idemnify him against any future liability or losses related to the mortgage on subject property at 1912 Hastings Drive, Clearwater, Florida." The sales transaction closed on July 7, 1983, and Respondent Reaves received a real estate brokerage commission in the amount of $1,955. The contract provided that the "listing agent agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." The purchase money mortgage note was actually signed by Michael R. Fisher, as trustee, and not by Respondent Reaves. Respondent Reaves requested that Mr. Singleton give her the mortgage payment booklets and she would assume and pay off the existing and second mortgages. Singleton trusted Reaves and relied upon her statements that she would do as she promised. Respondent Reaves failed to assume and pay the notes and mortgages and thereby caused the seller to become delinquent with the lenders. After closing, Respondent Reaves, acting as the owner, obtained tenants for the property and collected rental payments. Respondent Reaves solicited and obtained $3,000 in connection with a lease/option agreement. The lease/option agreement provided that the sales price of the home would be $78,000 in three years. The rent would remain at $495 per month for three (3) years. The agreement further provided that $3,000 per year would be paid for three (3) years which would reflect a total down payment of $9,000. This down payment was considered the "option consideration." The agreement provided that one third of the option money would be returned if the option were not exercised. The tenants paid Respondent Reaves a total of $3,000 of the option consideration. The renters became concerned when they began to receive notices from Freedom Mortgage Company stating that certain mortgages on the home were overdue. The renters did not exercise the option to buy the home. The renter requested, but did not receive, $1,000 of the $3,000 option consideration back from Respondent Reaves. COUNT V On July 6, 1983, Respondent Reaves entered into a real estate sales contract with Stephen B. Barnes, as seller, to purchase certain real estate through the use of a land trust. The property was not listed", but a broker from Tam-Bay Realty approached Barnes and stated that he had a buyer. The purchase and sale agreement provided for a total purchase price of $91,000. The agreement listed "C-21 A Little Bit Country" as escrow-agent for the binder deposit. In addition, the purchase and sales agreement provided that: "Listing agent Tam-Bay agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." The seller agreed that he would allow Respondent Reaves to assume the existing mortgage of approximately $52,990. Mr. Barnes then agreed to obtain a second mortgage in the amount of $18,925. The seller agreed that the balance of the sales price would be paid via a purchase money mortgage in the principal amount of $16,670.91 to be paid by Respondent Reaves. In addition, Mr. Barnes obtained a home improvement loan in the amount of $4,900. According to the agreements between Respondent Reaves and Mr. Barnes, Mr. Barnes was to keep the money obtained by the second mortgage and the home improvement loan. Respondent Reaves agreed to assume the existing mortgage, the second mortgage and the home improvement loan. Respondent Reaves advised Mr. Barnes to state to the lender that the purpose of the loans were for home improvements. Respondent Reaves executed a hold harmless and indemnity agreement which stated as follows: "Phyllis Reaves does agree to hold Stephen. B. Barnes harmless and does indemnify him against any future liability or losses related to the mortgages on property at 13222 - 88 Place North, Seminole, Florida." The sales transaction closed on August 10, 1983, and Respondent Reaves received a real estate brokerage commission in the amount of $2,513.45 and a mortgage brokerage fee of $946.25. Respondent Reaves failed to assume and pay the notes and mortgages and thereby caused the seller to become delinquent with the lenders. COUNT VI On September 3, 1983 Respondent Reaves entered into a real estate sales contract with Floyd and Christine Erwin, as sellers, to purchase certain real estate through the use of a land trust. The contract concerned Floyd and Christine Erwins' home located at 2805 Candlewood Drive in Clearwater, Florida. The purchase and sale agreement provided for a total purchase price of $53,000. The agreement listed C-21 A Little Bit Country as escrow agent for the binder deposit. The agreement further provided that the "listing agent agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." Respondent Reaves agreed to assume the existing mortgages of $16,766.29 and $17,457.94. In addition, the sellers agreed to obtain a new mortgage in the principal amount of $4,900 and a $1,500 personal loan. Upon the advice of Respondent Reaves, the sellers stated to the lender that the purpose of the loans were for home improvements. Respondent Reaves and the sellers agreed that the sellers would keep the money obtained by the loans and that Respondent Reaves would assume the mortgages and make all of the required loan payments. The sellers agreed that the balance of the sales price was to be paid via a purchase money mortgage, payable by Respondent Reaves, in the principal amount of $12,375.77. Respondent Reaves executed a hold harmless and indemnity agreement which stated as follows: "Phyllis Reaves does agree to hold Floyd S. Erwin and Christine E. Erwin harmless and does indemnify them against any future liability or losses related to mortgages or liens on the subject property at 2805 Candlewood Drive, Clearwater, Florida." Floyd and Christine Erwin's home was listed with a broker, and the Erwins understood that Reaves was not their agent. Respondent Reaves told the Erwins that she was representing "some investors." The purchase money mortgage note was actually signed by "Michael R. Fisher, as trustee and not personally." Respondent Reaves made some payments on the purchase money mortgage note which was signed by Michael Fisher. The sales transaction closed on September 23, 1983, and Respondent Reaves received a real estate brokerage commission in the amount of $1,555.50. Respondent Reaves failed to assume and pay the mortgages and notes. Respondent Reaves has not made the payments due on the mortgages and notes and has caused the Erwins to become delinquent with their lenders. COUNT VII The evidence presented concerning Count VII consisted solely of documentary evidence. For reasons enumerated in the Conclusions of Law section, infra, the documents alone are insufficient to establish the basis of any offense. Therefore, a discussion of those documents would serve no useful purpose. COUNT VIII On October 16, 1983, Respondent Reaves entered into a real estate sales contract with Patricia and William Willis as sellers, to purchase certain real estate through the use of land trust. The contract concerned the Willis' home located at 417 North Missouri Avenue, Clearwater, Florida. The purchase and sale agreement provided for a total purchase price of $54,000. The agreement listed C-21 A Little Bit Country as escrow agent for the binder deposit. The agreement further provided that the listing agent ". . . agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." Respondent Reaves and the Willis' agreed that Respondent would assume the existing mortgage of $15,396.52. The sellers agreed to obtain the new mortgage in the principal amount of $34,100. The sellers agreed that the balance of the sales price would be paid via a purchase money mortgage in the principal amount of $8,898.45 to be paid by Respondent Reaves. Respondent Reaves agreed to assume the existing mortgage and the new mortgage in the amount of $34,100 and make all of the required loan payments. Respondent Reaves advised the Willis' to state to the lender that the purpose of the $34,100 mortgage loan was for home improvements. The Willis' applied for the loan but refused to state that the purpose of the loan was for home improvements. Respondent Reaves executed a hold harmless agreement which stated as follows: "Phyllis Reaves does agree to hold Patricia L. Carrah, a/k/a Patricia L. Willis and William Willis harmless and does idemnify them against any future liability for losses related to any mortgages or liens on the subject property " The sales transaction closed on November 23, 1983 and Respondent Phyllis Reaves received a real estate brokerage commission in the amount of $3,213 and a mortgage brokerage fee of $2,216. Respondent Reaves failed to assume the notes and mortgages and thereby caused the sellers to become delinquent with their lenders. COUNT IX No evidence was presented concerning the allegations of Count IX. COUNT X No evidence was presented concerning the allegations of Count X. COUNT XI No evidence was presented concerning the factual allegations of Count XI. COUNT XII No evidence was presented concerning the factual allegations of Count XII. COUNT XIII No evidence was presented concerning the factual allegations of Count XIII. No evidence was presented concerning the factual allegations of Count XIV. COUNT XV on January 13, 1984, Respondent Reaves entered into a real estate sales contract with Clifford and Virginia Miner, as sellers, to purchase certain real estate through the use of a land trust. The contract concerned the Miner's home located at 1247 Burma Avenue, Clearwater, Florida. The purchase and sale agreement provided for a total purchase price of $62,000. The agreement listed "C-21 A Little Bit Country" as escrow agent for the binder deposit. In addition, the agreement provided that the listing agent ". . . agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." Respondent Reaves and the sellers agreed that Respondent Reaves would assume the existing mortgage of $34,424.82. Respondent Reaves advised the sellers to obtain a $20,000 second mortgage that she would also assume. The sellers were to obtain the mortgage and keep the money as their equity, and Respondent Reaves was to assume the mortgage and make the payments. The sellers agreed that the balance of the sales price was to be paid via a purchase money mortgage in the principal amount of $6,865.33, payable by Respondent Reaves. Respondent Reaves promised the sellers that she would make all the required loan payments and assume the mortgages. Respondent Reaves executed a hold harmless agreement which stated as follows: "Phyllis Reaves does agree to hold Clifford S. Miner and Virginia N. Miner, his wife, harmless and does idemnify them against any future liability or losses related to any mortgages or liens on the subject property . . . ." The purchase money mortgage note was actually signed by Michael R. Fisher, "as trustee and not personally." Respondent Reaves told Mr. Miner that the hold harmless agreement provided additional assurance that she would personally assume all of the mortgage and loans. The sales transaction closed on January 31, 1984, and Respondent Phyllis Reaves received a real estate brokerage commission in the amount of $1,823.25 and a mortgage brokerage fee of $949.48. Respondent Reaves failed to assume and pay the notes and caused the Miners to become delinquent with their lenders, requiring them to "catch up" on the delinquent loan. COUNTS XVI, XVII AND XVIII. The evidence presented concerning Count XVI, XVII and XVIII consisted solely of documentary evidence. For reasons enumerated in the Conclusions of Law section of this Recommended Order, the documents alone are insufficient to establish the basis of any offense. Therefore, a discussion of those documents would serve no useful purpose. COUNT XIX During the later part of 1984, an investigator, representing the Department of Professional Regulation, went to speak to Mrs. Ruffin at her "Little Bit of Country" office concerning this case. The investigator requested that he be provided with the records from all of Respondent Reaves' transactions. Respondent Ruffin stated that she was unaware of the particular real estate transactions in question, but that she would check and provide the records at a later date because she was in the process of moving the location of her office. After subpoena was served, Respondent's counsel provided one of the documents in question. COUNT XX Respondent Ruffin employed Respondent Reaves as a salesman. Respondent Ruffin thought of Respondent Reaves as "an independent contractor." Respondent Reaves decided on her own hours and took care of her own transportation. Respondent Ruffin and Respondent Reaves were on an 85%-15% split fee arrangement. Respondent Ruffin knew that Reaves was interested in "buying a lot of property." Respondent Ruffin was basically aware of the method that Respondent Reaves was using to obtain property. Respondent Ruffin did not feel that the method was wrong, however, she did ask Respondent Reaves to leave employment after she received many calls complaining about Respondent Reaves and information that Respondent was in a "tight financial situation." Respondent Ruffin admitted that she had very little time to provide assistance or guidance to Respondent Reaves. DOAH CASE NO. 85-2454 COUNT I There was no evidence presented concerning the factual allegations of Count I. COUNT II There was no evidence concerning the factual allegations of Count II. COUNT III On October 2, 1984, an investigator, representing the Department of Professional Regulation, went to speak with Respondent Ruffin at her office. The investigator requested certain records relating to Respondent Reaves' transactions concerning the charges herein. Respondent Ruffin stated that she was unaware of the particular real estate transactions in question, but that she would check and provide the records at a later date because she was then in the process of moving her office. After a subpoena was served, Respondent Ruffin's attorney provided one of the documents in question. COUNT IV There was no evidence presented concerning the factual allegations of Count IV of DOAH Case No. 85-2454.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent Phyllis I. Reaves' license as a real estate salesman be revoked; and, RECOMMENDED that Respondent Annette J. Ruffin be issued a written reprimand and assessed an administrative fine of $500.00. DONE and ORDERED this 27th day of March, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1986. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 3. Adopted in Findings of Fact 8 and 11. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 15 and 16. Partially adopted in Finding of Fact 17. Matters not included therein are rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 20. Adopted in Findings of Fact 20 and 21. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 26. Adopted in Findings of Fact 26 and 27. Adopted in Findings of Fact 31 and 32. Adopted in Finding of Fact 34. Adopted in Findings of Fact 37 and 38. Adopted in Findings of Fact 36 and 38. Adopted in Finding of Fact 40. Adopted in Finding of Fact 47. Adopted in Finding of Fact 49. Adopted in Findings of Fact 49 and 50. Adopted in Finding of Fact 55. Rejected as not supported by competent, substantial evidence. Rejected as not supported by competent, substantial evidence. Rejected as not supported by competent, substantial evidence. Rejected as not supported by competent, substantial evidence. Adopted in Finding of Fact 57. Adopted in Finding of Fact 58. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Gerald Nelson, Esquire 4950 West Kennedy Boulevard Tampa, Florida 33809 E. A. Goodale, Esquire 14320 Indian Rocks Road Largo, Florida 33540 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
The Issue Whether respondents' real estate licenses should be revoked, suspended, or otherwise disciplined on charges of false promises, misrepresentation, culpable negligence, and breach of trust in a business transaction.
Findings Of Fact Respondent Terry L. Baker is now and was at all times material to the charges a licensed real estate broker holding license no. 204679. (P-1) He also was president, secretary, and treasurer of respondent Terry L. Baker and Associates, Inc., a licensed real estate brokerage corporation (lic. no. 213974) located at 1418 West Edgewood Avenue, Jacksonville, Florida. There are no other officers, directors, or members of this brokerage corporation; respondent owns 100 percent of the capital stock. (P-1) Respondent was, and continues to be, the active broker for this real estate brokerage corporation. (P-1) On July 21, 1982, respondent assisted in the negotiation and closing of a real estate sales transaction between Dolores B. Hawkins, as seller, and James W. and Patricia L. Dobson, as purchasers. The real estate involved was a residential lot and dwelling unit located at 7065 Bishop Hatcher Drive East, Jacksonville, Florida, and was, at the time, the subject of a mortgage foreclosure proceeding. (Testimony of Hawkins, Baker; P-2, P-6) The real estate sales contract was signed by the seller and buyers on July 21, 1982. At that time, respondent submitted a written estimate of the seller's closing costs. This estimate, signed by both respondent and the seller, showed that the seller would net $1,598.25 from the transaction. It was specifically noted that this net figure did not include an Atlantic Bank payment. This payment was a recognized obligation of the seller and was required to obtain the release of a record judgment lien held by the bank. Ms. Hawkins, the seller, understood that this payment was her obligation and was not included in the $1,598.25 figure. The written estimate also included seller's cost of approximately $2,000 for attorney's fees and back mortgage payments. The attorney's fees were related to the legal costs associated with the mortgage foreclosure proceeding. An existing mortgage balance, to be assumed by the buyers, was listed as approximately $19,000. (Testimony of Hawkins, Baker; P-3) On two separate occasions prior to closing, respondent told seller Hawkins that there had been an increase in the charge for attorney's fees associated with the mortgage foreclosure. (Testimony of Hawkins, respondent) Prior to closing, respondent loaned seller Hawkins $220 to help her pay her apartment rent. They agreed that the loan would be repaid out of the proceeds from the sale of her property. (Testimony of Hawkins, Baker; P-4) At closing on August 17, 1982, respondent presented the seller with a Seller's Closing Statement listing various charges to the seller, including the loan repayment of $220, the payment to Atlantic Bank (for release of lien) of $425, attorney's fees of $638.50, and an assumed mortgage of $19,847.51. The net amount due the seller was $675.82. The buyers paid the balance due at closing and the seller delivered the warranty deed to respondent for recording. A couple of days later, respondent, in turn, wrote a check for $675.82 and delivered it to the seller as net proceeds from the sale. Payment of respondent's commission was shared by the seller and buyers at closing. Respondent received the warranty deed at closing and the parties to the transaction expected him to have it recorded. He accepted this duty and undertook to perform it. However, he did not record the warranty deed on the public records until October 4, 1982--almost three months later--after repeated requests by the mortgage service company for a copy of the recorded deed. The delay was caused by respondent's waiting to receive a release of the Atlantic Bank lien so that he could record the two instruments at the same time. But after repeated requests for a copy of the recorded deed, he finally recorded it even though he had not yet received the release of lien. (Testimony of Baker, Hawkins, Dobson) Contrary to the Department's contention, respondent's delay in recording the deed does not constitute culpable negligence, false promises, misrepresentation, or breach of trust in a business transaction. His lack of diligence in recording the deed is, instead, an act of simple negligence. His carelessness exposed the buyers to unnecessary risk. During this delay of almost three months, the seller, while record titleholder, could have reconveyed the property or subjected it to additional encumbrances. Respondent, in delaying recordation almost three months, failed to exercise that degree of care which a reasonable man, in the same situation and with similar experience, would not have omitted. His failure to exercise due care does not, however, demonstrate willful, wanton, or reckless disregard for the rights of others. The Department also charges that respondent did not have--at time of closing--the lien of Atlantic Bank satisfied. Prior to closing, the respondent- -on behalf of the seller--negotiated the outstanding debt with attorneys for Atlantic Bank: He was told that the bank would accept fifty cents on the dollar, or $425. Thereafter, respondent collected this amount as a charge to the seller at closing. (Testimony of respondent) Respondent, however, did not have an executed release of lien form, or the judgment lien satisfied, at closing. He asserts--without contradiction-- that the bank's attorney at first offered to prepare the release, but later asked respondent to do so. By the time of closing, respondent had been either unable to obtain the release from the attorney, or he had been unable to obtain and complete the form on his own. When asked why he proceeded to close the transaction although the release had not been obtained, he states that both buyers and seller consented to the closing because the property was facing foreclosure. Respondent's assertion that the parties consented to closing, in the absence of a release of lien, is unrefuted and accepted as fact. No evidence was presented that, in light of the parties' consent, closing of the transaction was improper.
Recommendation Based on the foregoing, it is RECOMMENDED: That the administrative complaint, and all charges contained therein, be dismissed for failure of proof. DONE and ENTERED this 23rd day of September, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 23rd day of September, 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the registration of Ronald W. Hoffman as a registered real estate salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of August, 1977. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1977. COPIES FURNISHED: Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Ronald W. Hoffman 722 Lithia Road Brandon, Florida 33511 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Petitioner, PROGRESS DOCKET NO. 3140 HILLSBOROUGH COUNTY vs. CASE NO. 77-679 RONALD W. HOFFMAN, Respondent. /
Findings Of Fact At all times pertinent to the charges, the Respondent Joyce A. Chandler, was a licensed real estate broker in the State of Florida, holding license number 0348072. Respondent's license was suspended for a period of one year pursuant to a Final Order of the Florida Real Estate Commission on August 4, 1983, which became effective September 3, 1983. To date, the Respondent has failed to take steps necessary to reactivate her license and she remains in a suspended status. Gerald and Mary Anne Jennings were the owners of a home located at 15413 S.W. 105th Avenue, Miami, Florida. There was a first mortgage on the home held by Stockton, Whatley and Davin. In the early part of 1981, the Jennings were experiencing financial difficulties and in an effort to help pay off debts secured a second mortgage in the amount of $15,000.00 from Davide and Associates, Inc. This mortgage from Davide and Associates, Inc., was a wrap-around mortgage making the total obligation (Stockton, Whatley and Davin plus Davide) approximately $44,000.00. In August of 1981, Davide and Associates, Inc. sold the wrap-around mortgage to Mr. and Mrs. Leon Shiff. In January of 1983, the Jennings made a decision to sell their home as they were having difficulty making payments to Shiff. The Jennings contacted Mr. Shiff and informed them of their decision, and Mr. Shiff attempted to secure prospective purchasers for them. On or about January 30, 1983, the Respondent Chandler made an offer to purchase the Jennings home, which offer was rejected by the Jennings. On or about February 2, 1983, the Respondent made a second offer to purchase the Jennings home which offer was accepted. The terms of this February 2, 1983 contract provided that the Respondent was to give sufficient funds to the Jennings to catch up on all mortgage arrearages, tender to the Jennings approximately $4,000.00 in cash, and the Jennings were to take back a third mortgage in the amount of $4,000.00. Respondent, in turn, was to assume the Stockton, Whatley and Davin mortgage and agreed to pay off the Shiff mortgage within 90 days. The Jennings desired to return to West Virginia immediately. Therefore, the Respondent promised and represented to the Jennings that she would secure tenants to occupy the residence while she attempted to obtain the necessary financing and to close the transaction and would use the proceeds from the rental money to make all mortgage payments. On or about February 22, 1983, the Respondent and the Jennings signed yet a third contract. Said contract has not been produced and the location of it is unknown. On this same date, the Respondent had the Jennings sign, in blank, a Warranty Deed. The Respondent represented to the Jennings that the Warranty Deed was nothing more than a Power of Attorney which enabled the Respondent to rent the house and use the rental money to make the mortgage payments while the Respondent sought the financing per the terms of the contract. Based on the Respondent's representations and promises, the Jennings vacated the residence and stopped making mortgage payments. Thereafter, the Respondent secured a Mr. and Mrs. Hill as tenants for the property. Mr. and Mrs. Hill came to the Respondent as tenants from Prudential Life Insurance Company. Mr. and Mrs. Hill had recently experienced damage to their home due to a fire and the Respondent secured rental property for the Hills on behalf of Prudential. In regards to this matter, Prudential paid via a double party check made payable to Robert Hill and Princess International, Inc. $1,950.00. The Respondent goes by the name of P. J. Chandler, Princess Chandler, Princess international and Princess International, Inc. These tenants remained in the Jennings' home for approximately two months. The Respondent made no mortgage payments to either Stockton, Whatley and Davin or to Mr. Shiff for the period of February 1983 to August 1983. Further, the last mortgage payment made was for the January payment delivered to Mr. Shiff by Mrs. Jennings. In order to keep the first mortgage in good standing with Stockton, Whatley and Davin, Mr. Shiff took it upon himself to make these mortgage payments although he was receiving no mortgage payments on the wrap-around from Mr. & Mrs. Jennings or the Respondent. In June of 1983, Mr. Shiff enlisted the aid of Herman Isis, attorney at law, to begin foreclosure proceedings on the residence. In August of 1983, the residence was sold to Shiff at the foreclosure sale. Thereafter, a certificate of title was received by Mr. Shiff in regards to said foreclosure purchase. The Jennings received only $3,248.00 from the Respondent as opposed to the approximate $8,000.00 contract amount. The transaction never closed as promised by the Respondent. Finally, the Respondent failed to make the necessary mortgage payments as represented and promised by her to the Jennings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent Joyce A. Chandler's license as a real estate broker be revoked. DONE and ORDERED this 22nd day of March, 1985, in Tallahassee, Leon County, Florida. SHARYN L. SMITH 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 22nd day of March, 1985. COPIES FURNISHED: James R. Mitchell, Esquire Department of Professional Regulation, Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Fred Graves, Esquire 315 S.E. Seventh Street Ft. Lauderdale, Florida 33301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Alan Kaye was a licensed real estate broker in the State of Florida and respondent KNAC of Miami Realty, Inc. was a corporation registered as a real estate broker in the State of Florida. Respondent Alan Kaye was an officer of and qualifying broker for respondent KNAC of Miami Realty, Inc. Respondents secured a 90-day listing from Christina Trivino for the sale of her residence located at 271 N.W. 148th Street in North Miami, Florida. When that listing expired, respondents obtained an extension. On or about November 28, 1987, respondents solicited and obtained a sales contract for the purchase and sale of the Trivino property. In connection therewith, the purchasers, Marie C. Eduoard and Henry S. Roy, entrusted to the respondents a total earnest money deposit of $6,200.00, and the respondents placed the deposit in the escrow account of respondent KNAC of Miami Realty, Inc. In accordance with the provisions of the sales contract, the purchasers were to pay a total of $62,000 for the property, and assume the existing first mortgage in the principal amount of approximately $45,000. While the contract initially called for the closing to occur on or before February 15, 1988, Ms. Trivino was very anxious to close earlier due to some problems she was having with the Internal Revenue Service. Accordingly, the closing date was changed to occur on or before January 15, 1988. Among the terms of the sales contract was a provision that conditioned the sale upon the purchasers' assumption of the first mortgage in the principal amount of approximately $45,000. Paragraph 8 of the contract provided that If, after diligent effort on the part of the purchaser, the purchaser is unable to obtain said first mortgage, all monies deposited hereunder shall be refunded to purchaser and parties herewith agree to enter into a Release on Deposit Receipt; and this contract shall be declared null and void. At some point in time, it became known to the respondents and the seller Trivino that the bank which held the first mortgage on the subject property would not authorize an assumption of the mortgage by the purchasers without either a $3,000 paydown of the mortgage amount or the completion of qualifying papers by the purchasers. The testimony from Ms. Trivino and Mr. Kaye differ widely with regard to the dates upon which and the manner in which they became aware of this problem, as well as their communications with each other thereafter. Ms. Trivino testified that in early January, 1988, she became concerned about the status of the transaction and began making repeated calls to the respondents which calls were never returned. She admits talking with Todd Kaye, respondent's son, in the respondents' offices on January 5, 1988, whereupon the mortgage problem was discussed. At that time, needing "desperately" to sell the house, Ms. Trivino offered to hold a second mortgage for the purchasers in the amount of approximately $3,000.00. She states that she also spoke with the officials at the bank regarding the mortgage. In spite of numerous unreturned telephone calls, Ms. Trivino did not hear anything further from Mr. Kaye until his letter dated January 29, 1988. That letter informed Ms. Trivino of the mortgage situation and indicated that "there is some doubt whether or not the Buyer has this extra money." Mr. Kaye further informed Ms. Trivino that "for all practical purposes, since the closing has not taken place, due to no one (sic) fault, the contract is void." Ms. Trivino then had her employer, a licensed real estate broker, write a letter dated February 3, 1988, to Mr. Kaye requesting Mr. Kaye to retain the $6,200 deposit pending a determination of the matter. She asserts that she made numerous further attempts to contact Mr. Kaye regarding this matter, but he would not return her calls. According to Mr. Kaye, he delivered the sales contract to a title company in early December, 1987, with the requests that the title company do a title check, that the mortgage holder be contacted, and that a mortgage assumption package for the buyers be obtained. Mr. Kaye states that he was thereafter informed by the title company that the mortgage holder would not allow an assumption of the mortgage without a paydown of about $3,000. Mr. Kaye states that he communicated to the buyers the problem with the mortgage assumption and also communicated Ms. Trivino's offer to take a second mortgage for $3,000. According to Mr. Kaye, the buyers did not want a second mortgage and did not feel that they could qualify for an assumption of the first mortgage because they were unemployed at the time. Instead, they wanted a return of their $6,200 deposit. Mr. Kaye felt that the sales contract had become void because of the inability of the buyers to assume the first mortgage, as provided in Paragraph 8 of the sales contract. Accordingly, he returned the $6,200 deposit to the buyers on January 10, 1988. He did not request Ms. Trivino's consent nor did he notify Ms. Trivino that he had refunded the deposit to the buyers because he felt that Ms. Trivino was fully aware that "the deal was dead."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondents be DISMISSED. Respectfully submitted and entered this 15th day of March, 1989, in Tallahassee, Florida. 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 15th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4062 The parties' proposed findings of fact have been fully considered and are accepted and/or incorporated in this Recommended Order, with the following exceptions: Petitioner 8. The evidence demonstrates that the amount of the deposit was $6,200 in lieu of $6,000. 13. Partially rejected based upon the seller's testimony that she spoke to Todd Kaye in respondent's offices on or about January 5, 1988. 15. Accepted with the addition of the fact that the respondent communicated this offer to the buyers. Respondent 4. The evidence demonstrates that the amount of the deposit was $6,200 in lieu of $6,000. 8. The date of "early December" is rejected as not established by competent, substantial evidence. 10. Rejected as not established by competent, substantial evidence. COPIES FURNISHED: James H. Gillis, Esquire DPR, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Manuel M. Arvesu, Esquire 100 North Biscayne Blvd. Miami, Florida 33132 Darlene Keller, Executive Director DPR, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 =================================================================
