The Issue The issue is whether 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 any business transaction, in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact Respondent was first licensed as a real estate salesperson in Florida in 1997. She has been licensed continuously since that time, although she did not reside or work in Florida for one year in 1998 and 1999. Her license has never been disciplined. Having entered into a contract to purchase, as her personal residence, a townhouse in Palm Beach Gardens for $85,000, Respondent contacted a licensed mortgage broker, Gary Carlson. Respondent and Mr. Carlson had previously worked together, in their respective professions, while employed by a large residential real estate business. Respondent asked Mr. Carlson to find her a mortgage lender, and Mr. Carlson agreed to do so. Mr. Carlson obtained a mortgage loan application from Respondent and submitted it to an institutional mortgage lender that Mr. Carlson represented. At all times in this transaction, Mr. Carlson served as the agent of the mortgage lender, not Respondent. After examining the application and related information on the proposed mortgage loan, the lender directed Mr. Carlson to obtain additional information, including an affidavit to the effect that Respondent had never been known as Lea Taylor Nola and that she had never been married. Respondent disclosed to Mr. Carlson that she had been known as Lea Taylor Nola and she had been married, although she was now divorced. Mr. Carlson assured her that the requirements were unimportant and advised her to sign statements that she did not know Lea Taylor Nola and that she had never been married. Respondent did so. Upon examination of the closing documents, including the unattested statements described in this paragraph, the lender funded the mortgage loan, and Respondent purchased the townhouse. The mortgage loan remains in good standing two years later.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 30th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2004. COPIES FURNISHED: Jauna Watkins, Acting Director Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 James P. Harwood Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32802-1900 Richard L. Robbins Sutherland, Asbill & Brennan, LLP 999 Peachtree Street, Northeast Atlanta, Georgia 30309-3996
Findings Of Fact At all times pertinent to the issues herein the Respondent, Linda H. Abraham, was licensed by the State of Florida as a real estate broker under license number 0323486. During the months of February and March 1983 Martha L. Tew owned a parcel of waterfront property located in Panama City Beach which was identified as being for sale by a sign on the property reflecting her husband's real estate company. Her husband was Ronald Eugene Tew and Mrs. Tew also held a salesman's license. Mr. Tew was contacted by Gregory A. Peaden, a contractor and developer in the Panama City Beach area on several occasions prior to March 1983 with offers to purchase the Tew property. The contacts with Mr. Peaden subsequently culminated in a contract dated March 8, 1983, between Greg Peaden, Inc., and the Tews in the amount of, initially, $180,000.00. During the negotiations for the property, Mr. Peaden had introduced the Respondent to the Tews as his broker. When, at the time of Use contract, Mr. Peaden advised the Tews he wanted Respondent to get a commission for the sale, Mr. Tew refused to pay any commission indicating that Respondent had performed no service for him; that he, Tew, was a broker himself; and that he had no intention of paying any commission to the Respondent or to anyone, for that matter. After some further negotiation, a second contract was prepared and agreed upon wherein the contract price was raised to $189,000.00 and the Respondent's commission was to be paid with the additional money from Mr. Peaden. The contract in question executed by the parties on March 8, 1983, reflected that the sum of $5,000.00 deposit was paid to Linda Abraham, Inc., by check. Mr. Tew contends that at this point he was led to believe that Respondent had the $5,000.00 check and, he contends, he would not have signed the contract if he had known that the check had not been delivered and placed in Respondent's escrow account. The actual signing of the contract took place in Respondent's office, a mobile home which she shared with Mr. Peaden's business. This trailer home was described as having Mr. Peaden's office on one end, and Respondent's on the other, with the living-kitchen area in the middle used as a reception area for both businesses. Mr. Peaden contends that once the contract was signed by the Tews, he gave a check drawn on one of his business accounts, that of Peaden and Guerino, a property management company he owned, to his secretary, Judy White, to deposit in Respondent's escrow account and thereafter promptly forgot about the matter until the date scheduled for closing, two months in the future. Ms. white, on the other hand, contends that Mr. Peaden at no time gave her a check for $5,000.00 to deposit to Respondent's escrow account. It is her contention that when she received the contract after it was signed, she, on her own, inserted the receipt portion on the bottom of the second page and signed as having received it merely to complete the contract. At the time, she contends, she did not know if the deposit was received from Peaden or not. She has never signed a contract like this before without a deposit and cannot give any other reason why she did it on this occasion. She is certain, however, that at no time did Mr. Peaden ever give her a $5,000.00 check or tell her to draw one for his signature on March 8, 1983, or, for that matter, at any time thereafter. What is more, neither Mr. Peaden nor the Respondent, at any time after the signing of the contract and prior to her departure under less than friendly circumstances approximately a week or so later, ever asked her whether she had made the escrow deposit or discussed it with her at all. Ms. white contends that she left Mr. Peaden's employ because he expected her to perform certain functions she was unwilling to do. When she left his employ, she did not feel there was any unfinished business that needed her immediate attention. To the best of her recollection, there were no sales contracts or deposits left in or on her desk - only bills. According to Respondent, the $5,000.00 deposit by Mr. Peaden was to stay in her escrow account. She understood Mr. Peaden was going to arrange with the bank to borrow the entire cash payment called for under the contract, including the deposit, and when that was done, it was her intention to give him back his $5,000.00 check. Under these circumstances, the amount in escrow would never be paid to the sellers but would be returned to Mr. Peaden and the Tews would receive the entire cash amount called for by the contract from the proceeds of the bank loan. Respondent also indicated that this procedure had been followed at least once, in a prior transaction. Under the circumstances, it is clear that no deposit was ever received from Mr. Peaden nor was it placed in Respondent's escrow account. Therefore, the contract, dated on March 8, 1983, was false in that it represented a $5,000.00 deposit had been received. The check for $5,000.00 dated March 8, 1983, payable to Linda Abraham, Inc. and drawn by Mr. Peaden on the Peaden and Guerino account with the stub admitted to show the date of issuance, does not establish that it was written on March 8, 1983, as contended. This check, number 1349, comes after two other checks, 1347 and 1348, which bear dates of April 4 and September 7, 1983 respectively. Mr. Peaden's explanation that the checks were drafted out of sequence is non-persuasive. Of greater probative value is the fact that neither Mr. Peaden nor Respondent bothered to review their bank statements on a regular basis. The check in question was drawn on an account not related to the construction and development business of Greg Peaden, Inc. Further, examination of Respondent's escrow account reflects that there were approximately eleven transactions over a three year period even though, according to her, she handled numerous other closings as well as this. Her explanation is that in most cases the attorney handling the closing served as escrow agent even though she was the sales broker. Her explanation is not credible. This appears to be a classic situation of movement of accounts to satisfy a particular end. The contract called for closing of the sale to be held on or before May 8, 1983, in the office of Panama Title Company. May 8, 1983, fell on a Sunday. As a result, the closing would not have been held that day, but it was not held the following day, Monday, May 9, 1983 either. Mr. Peaden admits that he had not checked with Panama Title prior to May 9 to see if everything was prepared for the closing. Instead, he contacted the title company for the first time at approximately noon on May 9. Apparently he received disquieting information because he thereafter called his attorney, Mr. Hutto, and asked him to check with the title company to see if and when the closing would be held. Mr. Hutto's inquiry reflected that the title insurance binder was ready but the closing statement and the package were not because the title company required a copy of the contract. At this point Mr. Peaden immediately had a copy of the contract delivered to the title company but later that day was advised that the closing still could not be held because of the failure to provide a survey. Mr. Hutto indicates that the reason given was that the release clauses called for in the contract required the survey to be furnished though he did not necessarily agree with that. In any event, closing was not held on May 9. At this time both Mr. Peaden and Respondent allegedly became concerned about the $5,000.00 deposit. Admittedly, neither had concerned themselves with it from the time of the signing of the contract. At this point, Mr. Peaden indicates that he examined his bank records which failed to show the deposit being made and his subsequent search of Ms. White's desk finally revealed the check, undeposited, still there. On May 11, 1983, a $5,000.00 deposit was made to the account on which the deposit check was drawn and on the same day, May 11, 1983 check number 1349, in the amount of $5,000.00 was presented against the account. When on May 10, 1983, Mr. Peaden and Respondent went to Mr. Hutto's office the primary reason for the visit was because Mr. Peaden had heard that the Tews were planning to sell the property in question to someone else at a price much higher than that agreed upon for the sale to Peaden. At this point Mr. Hutto indicated that if Peaden so desired, Hutto could "fix up the contract to jam up the works" until he could do something about it. His examination of the contract revealed that it was not recorded or acknowledged and under the laws of Florida, acknowledgment is required in order for a contract to be recorded. Hutto asked the Respondent if she had seen the parties sign the contract and when she said that she had, he had his secretary prepare a jurat. Unfortunately, his secretary prepared an affidavit type notary jurat rather than an acknowledgment and Hutto quickly admits that he did not look at it when it was given back to him. He says that if he had, he would have had it changed but in any event, without looking at what was given him, he gave it to the Respondent with the implication, at least, that she should notarize it and have the contract recorded. According to Hutto, Peaden, and the Respondent, the sole purpose for notarization and recordation was to preserve the status quo to protect Mr. Peaden's interest in the property so that the matter could be adjudicated in a lawsuit which was soon to be filed. Respondent contends she never intended any misconduct throughout this transaction nor did she do any of the things alleged in the Administrative Complaint. She contends she never saw the check which Mr. Peaden allegedly gave to his secretary for deposit to her escrow account. She merely assumed that it was given and never checked to insure that it had been placed in her account. She does not know why Mr. Peaden did not give her the check. When she took the contract to the Tews, she was operating under the assumption that the check had been received but did not verify this to insure that it had. She contends that since she represented the buyer, her duties were limited to insuring that he performed and this made it simple. She did not check on him because she had had so much experience with him, him being by far her largest account, if he said something, she believed him and when the contract was executed, she merely instructed the secretary, Judy White, to make the file and did not check on it again. As to the recordation and the notarization after the fact, she acted upon the advice of counsel, she states, and did what was suggested to her by Mr. Hutto. It should be noted, however, that Mr. Hutto did not represent her but instead represented Mr. Peaden and while because of her long-standing relationship with him and Mr. Hutto, she may have felt safe in relying on his advice, the fact remains that Hutto was not her attorney.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered real estate broker in Florida be suspended for six months and that she pay an administrative fine of $2,000.00. RECOMMENDED this 6th day of June, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of June, 1985. COPIES FURNISHED: Arthur Shell, Esquire Department of Professional Regulation Division of Real Estate 400 W. Robinson Street Orlando, Florida 32801 John D. O'Brien, Esquire P. O. Box 1218 Panama City, Florida 32402 Harold Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
Findings Of Fact The complaining witnesses in this case, the Marino's, owned real property in Fern Park, Florida that they listed in November, 1973, with Area One, Inc., a corporate broker. They were very anxious to sell this property. At all times here involved, respondent was a registered real estate broker and was employed as a salesman and office manager of Area One, Inc. The property was listed through salesman Eleanor Stanfield although respondent Greene accompanied her to the Marino's when the listing was obtained. Approximately two weeks thereafter, respondent obtained a prospective buyer for the property who was willing to purchase but couldn't meet the cash down payment required to make up the balance over a 95 percent mortgage. The buyer, Borsack, was an acquaintance respondent had known socially for a year or so. The suggestion was made that if Marino could loan Borsack the money for the down payment the latter would sign a balloon note payable twenty dollars per month for the first five years with the balance then due and payable. When bringing this proposal to Marino, respondent told him it was not the best deal but it was the best he could offer at the moment. At the time, Borsack was employed as a salesman and was apparently earning a good salary. Marino was receptive to the idea and agreed to loan the buyer $2400. Marino was advised by his lawyer that he should have more security for the loan than the note signed by Borsack alone and respondent agreed to guarantee the note. Marino prepared a check for $2400 which he exchanged for a cashier's check for a like amount. This was given to respondent when he executed as the guarantor and was subsequently given to the closing agent. There was conflicting testimony regarding the dispenser of the information that the existence of the note should be withheld from the mortgage broker at the closing. The complaining witnesses contended that respondent so advised them, but he denies ever giving such advice. Regardless of the complicity of respondent in this regard, both parties to the contract were aware that the mortgage would not be approved if the existence of the loan was disclosed to the mortgagee. To account for his cash payment at closing, Borsack produced for the mortgage a letter from his sister reciting a gift from her of $2200. Borsack also signed a residential loan application (Exhibit 8) in which he indicated no financing other than first mortgage and the cash he would pay at closing. Both buyer (Borsack) and seller (Marino) executed an affidavit (FNMA Form 1009)(Exhibit 10) on which they advised the mortgagee no secondary financing was involved in the transaction. At the time the loan was made by Marino to Borsack the former's attorney was aware of the circumstances surrounding the transaction and this attorney advised Marino that it would be all right for him to accept the note provided payment was guaranteed by respondent. Although no testimony was elicited from the attorney in this regard, I would expect him to be cognizant of the fact that the mortgage would not be approved if the mortgagee was aware of the loan from seller to buyer. Considerable testimony was adduced regarding whether or not the promissory note given by the buyer to the seller constituted secondary financing as intended on Exhibits 8 and 10. Since this determination is not necessary to the results reached below, respondent's understanding that "secondary financing" relates only to that financing that would create a lien on the property is likewise immaterial to the result. During a 60 day period including the time this transaction occurred, respondent sold four pieces of property for the Marino's. At no time during the negation which resulted in the sales of the property from Marino to Borsack did respondent give any false or misleading information to the Marinos. Although no evidence was presented to this effect, the complaint alleges, and the answer admits, that after the transaction closed Borsack subsequently defaulted on his mortgage and on his note to Marino; that respondent made a few payments on the note he had guaranteed before stopping these payments; and that Marino obtained a judgment against respondent for the amount of the promissory note. Thereafter, in December 1975, some two years after any act of respondent in this transaction that could have given rise to a violation of Chapter 475, F.S. occurred, the Marinos filed a complaint with the FREC and the investigation and administrative complaint here involved followed.
Findings Of Fact On October 9, 1992 Petitioner executed a sworn application for licensure as a life and variable annuity and health insurance agent. Such application was filed with the Department on October 13, 1992. At the Department's request, the Petitioner sent a second application by facsimile transmission on February 19, 1993. This second application was unexecuted, that is, unsworn but was on the same form as previously described in paragraph 1. On each copy of the application, Petitioner responded "yes" to the question: Has your application for a license ever been declined or denied by this or any other Insurance Department or has your License or eligibility to hold a license ever been declined, denied, suspended, revoked, placed on probation or an administrative fine or penalty levied? On each copy of the application, Petitioner responded "no" to the question: Does any insurer or general agency claim that you are indebted under any agency con- tract or otherwise? If yes, please attach a letter of explanation. When the Department requested additional information regarding Petitioner's answer to the question described in paragraph 3, the Petitioner gave a response that led to the review of a final order entered by the Department on October 30, 1990. As set forth in the final order and the recommended order attached thereto, the basis for the Petitioner's prior revocation, was a pattern of deceit evidenced by false statements on applications for insurance, by the forgery of names on applications for proposed insureds, and by forging names for requests for cancellation of coverage. As a result of the actions described in paragraph 6, the insurer for whom Petitioner worked at the time, Colonial Life and Accident Insurance Company (Colonial), took legal action against Petitioner for damages incurred or to be incurred by the company as a result of the deceit. That civil suit was settled by the entry of a settlement judgment in which Petitioner agreed to repay Colonial damages in the amount of $60,000. The amount was to be repaid pursuant to a payment schedule. At the times Petitioner filed applications with the Department (October and February), such monies had not been repaid and Petitioner was, in fact, in default on the payment schedule. Colonial is currently owed approximately $32,000 of the original settlement. Additionally, when Colonial sought to enforce its judgment against Petitioner, he filed for bankruptcy to protect his assets and to restructure his debt. Thus when Petitioner answered in the negative to the question outlined in paragraph 4, such answer was incorrect and misleading. On February 24, 1993, the Department notified Petitioner that his application for licensure had been denied. The actions complained of, and which gave rise to Petitioner's prior revocation, were fully established in the prior proceeding. Petitioner's misstatement on the current application gives concern as to whether misleading statements or misrepresentations may recur.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order that denies Petitioner's application for licensure. DONE AND RECOMMENDED this 11th day of August, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2587 The Petitioner submitted proposed findings in the form of a letter. Only the second and third paragraphs of that letter set forth findings of fact, the remainder of the letter is hereby rejected as argument, comment, or conclusions of law, not fact. Rulings on the proposed findings of fact submitted by Petitioner: With regard to the second paragraph, it is accepted that the Department was aware of the Petitioner's indebtedness to Colonial. That Petitioner, or his agent, wrote to Mr. O'Neil is rejected as irrelevant. Further, such letter is not accepted for the truthfulness of the matters asserted in it. When confronted, Petitioner has been truthful regarding the indebtedness to Colonial; such indebtedness, however, was not accurately depicted on the application for licensure. With regard to the third paragraph, it is accepted that Petitioner has repaid some of the indebtedness to Colonial; otherwise, the paragraph is rejected as not supported by the credible evidence presented in this case. Rulings on the proposed findings of fact submitted by Respondent: 1. Paragraphs 1 through 19 are accepted. COPIES FURNISHED: Lawrence Sherman Lowe, III, pro se 9150 South West 23rd Street, Apt. D Fort Lauderdale, Florida 33324 John R. Dunphy Department of Insurance and Treasurer Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issues in this matter are whether Respondent poses an immediate, serious danger to the public health, safety, or welfare, and, if so, whether Petitioner has cause to immediately suspend Respondent's loan originator license.
Findings Of Fact At all times relevant to this case, Respondent was licensed with the Office to conduct business as a loan originator in the State of Florida. Respondent holds certificate of licensure NMLS No. LO19773. As a loan originator in Florida, Respondent is governed by chapter 494. The Office is the state agency charged with licensing, regulating, and supervising loan originators in Florida pursuant to chapter 494. On March 24, 2015, Respondent was arrested for the following crimes by the Sarasota County Sheriff's Office: Occupied Burglary--pursuant to section 810.02(2)(a), Florida Statutes,3/ a first-degree felony; Battery on a person 65 years or older-- pursuant to section 784.08(2)(c), Florida Statutes,4/ a third-degree felony; and Simple Battery (two counts)--pursuant to section 784.03(1)(a)1.,5/ first-degree misdemeanors. On May 12, 2015, Respondent was charged with these crimes in Sarasota County, Florida, in Case No. 2015-CF-004817-NC. Respondent's criminal case is currently pending disposition in Sarasota County. At the final hearing, Respondent described her actions which led to her arrest on March 24, 2015.6/ The incident began with a dispute over money. According to Respondent, an individual allegedly stole $258.00 from Respondent's friend who was staying at her house. Respondent, together with the friend and three other individuals, drove to the suspected thief's house to demand the money's return. Upon arrival at the house, Respondent walked up to and knocked on the front door. Two individuals, the suspected thief and the suspected thief's mother, answered. The confrontation quickly became physical. Respondent claims that the suspected thief's mother started the fight by jumping on her from out of the front door. Rapidly, upwards of five individuals were involved in hitting, pushing, tackling, and wrestling. The scrum ranged from the front door to the house's garage. Respondent recounted that she was battered, punched, slammed to the ground, and beaten with a cane. (The cane-wielder was the suspected thief's grandfather, who is over 65 years old, which apparently led to Respondent's felony charge of battery on a person 65 years or older.) Respondent claimed she suffered injuries to her chin, neck, heart, and scalp. At the final hearing, Respondent testified that she did not enter the suspected thief's home. However, Respondent did admit that at some point during the encounter, she entered the open garage with the intent to access the house through the side door. (This action evidently led to Respondent's felony charge of burglary.) Eventually, the Sarasota County Sheriff's Office was called and responded. The fight broke up. No serious injuries were reported. No information was presented regarding the fate of the $258.00. Respondent testified that she did not start the fight. She claimed that because of her small frame, she was never a serious danger to anyone. Nevertheless, the Sarasota County Sheriff indisputably arrested Respondent for her alleged role in the altercation. As of the date of the final hearing, Respondent understood that she will have a court date in August 2015 for the pending criminal case. Based on Respondent's arrest, on April 8, 2015, the Office issued the Emergency Order. The Office issued the Emergency Order pursuant to sections 120.60(6) and 494.00255(8). The Emergency Order states that the Office found Respondent's activities posed an immediate and serious danger to the public welfare. The Emergency Order ordered Respondent to immediately cease and desist from engaging in the business of loans and any activities in violation of chapter 494 and Office rules. Through the Emergency Order, the Office suspended Respondent's loan originator's license, effective April 13, 2015. Respondent's loan originator license is suspended "until such time as [Respondent] complies with the terms of this order." As described in the Emergency Order, the Office determined that Respondent's actions that led to her arrest posed an immediate, serious danger to the public based on several factors. The Emergency Order declares that the Office found that an emergency suspension and a cease and desist order was necessary to protect Florida consumers from Respondent's "apparent unpredictable and irrational behavior." Furthermore, Respondent's "apparent volatility, unpredictability, and lack of impulse control" calls into question her "trustworthiness and character." The Emergency Order also states that "[c]ommitting felony battery over a financial matter demonstrates that Respondent lacks the character or general fitness necessary to command the confidence of the community." To emphasize the seriousness of the alleged crimes, the Office points to the fact that the felony burglary charge carries a possible maximum penalty of life in prison. The Office included provisions and terms in the Emergency Order to meet the fairness requirement of section 120.60(6). The Emergency Order contained detailed factual findings in order to adequately notify Respondent of the basis for the Office's intended action. The Emergency Order included a Notice of Rights which provided Respondent the point of entry to request an expedited administrative hearing pursuant to chapter 120 to contest the Emergency Order (which Respondent pursued in the present matter). The Emergency Order also informed Respondent of her opportunity to seek to stay the Office's action through an appellate proceeding under section 120.68. Further, the Emergency Order stated that Respondent's loan originator's license is subject to reinstatement, if the criminal charges are ultimately dismissed or not prosecuted. At the final hearing, Respondent conceded that she made the wrong decision to confront the suspected thief. She expressed that she was not thinking clearly at the time. Nevertheless, Respondent asserts that she is falsely accused and has done nothing wrong. She pleads to keep her license during the time it takes Sarasota County to process her criminal case. Respondent proclaims that she should be considered and treated as innocent of all charges up to and until such time as the allegations against her are proven. Respondent asserts that her loan origination business is her sole source of financial support. Based on the facts produced at the final hearing and further discussed below, the undersigned finds that the Office has not met its burden of demonstrating by clear and convincing evidence that immediately suspending Respondent's license to conduct business as a loan originator is an action "necessary to protect the public interest," as required by section 120.60(6)(b).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Office of Financial Regulation, enter a final order rescinding the Emergency Order to Cease and Desist and Suspending License issued to Respondent, Frankie Damiano, on April 8, 2015. DONE AND ENTERED this 21st day of July, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 21st day of July, 2015.
Findings Of Fact Exhibit 2 evidences some 13 arrests of Petitioner, most of which are for the offense of larceny. Although this document is hearsay, Petitioner readily acknowledged that in 1980 and 1984 he was a drug addict and supported his habit by stealing. Exhibit 3 consists of 6 convictions of grand theft and burglary on August 1, 1980, another count in 1984 and one count of attempted grand theft on October 26, 1990. The period between 1980 and 1984 was a period in Petitioner's life immediately following his discharge from the armed forces. On October 26, 1990, Petitioner was adjudicated guilty of grand theft following a plea of nolo contendere to the charge of obtaining or using or attempting to obtain or use the property of another with intent to deprive the owner of the use thereof of personal property of the value of $300 or more. Petitioner testified that in 1990 his 19 year old stepson, who was preparing to enter college, while driving Petitioner's pickup truck, stopped near a parked vehicle and attempted to steal personal property therefrom, but fled when someone observed him. The license number of the pickup was traced to Petitioner. The stepson confessed his actions to Petitioner and when the police arrived, Petitioner, who already had a criminal record that could hardly be blemished further, told the police that he was the driver of the pickup. He was charged with the offense of attempted grand larceny, pled nolo contendere, was adjudicated guilty and was sentenced to 5 years in prison of which he served some 7 months. The stepson graduated from college and is now married, gainfully employed, and raising a family. When submitting his application for licensure, Petitioner further testified that he researched the definition of moral turpitude, spoke to his lawyer and other people regarding his conviction of grand larceny, and was told that the offense did not necessarily constitute an offense involving moral turpitude. Accordingly, Petitioner assumed that he had not been convicted of an offense involving moral turpitude and marked item 5 on his application "No" which asked if he had ever been found guilty of a crime involving fraud, dishonest dealing, or any other act of moral turpitude. Petitioner contends that he told Respondent's employees, with whom he discussed his application for licensure, of his criminal record and was told this was not disqualifying. Accordingly, he spent the money to obtain the required mortgage broker education certificate and to take and pass the examination for mortgage broker license, only to be told after these efforts that he could not qualify for licensure.
Recommendation It is RECOMMENDED that a Final Order be issued denying the application of Stephen J. Matala for a licensure as a mortgage broker. DONE AND ENTERED this 27th day of January 1994 in Tallahassee, Leon County, Florida. K. N. AYERS 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 27th day of January 1994. COPIES FURNISHED: Stephen J. Matala 32414 Marchmont Circle Dade City, Florida 33525 Lisa L. Elwell, Esquire Office of the Comptroller Department of Banking and Finance 1313 Tampa Street, Suite 615 Tampa, Florida 33602-3394 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
The Issue Whether Respondent violated Section 475.025(1)(b), Florida Statutes, and, if so, what the appropriate penalty is.
Findings Of Fact At all times relevant hereto, O. Dane Streets was licensed by the Florida Real Estate Commission as a real estate broker having been issued License No. 0085710-1 for an address in Lakeland, Florida. In the Spring or early Summer of 1991, Nathan Price, a minister in Orlando, Florida, contacted Respondent to solicit Respondent's participation in representing Price's daughter, Melissa Howard, in purchasing real estate in Orlando. Price and Respondent have been business and social acquaintances for more than 10 years, and Price was helping his daughter and son-in-law in purchasing a home. The Howard's found a house they liked, Respondent obtained the listing information from the listing broker and prepared a contract for sale and purchase (Exhibit 1). As modified and accepted by all parties, this contract provided for a $1000 earnest money deposit to be held in escrow by Respondent's real estate company. In lieu of obtaining the deposit from Price or Howard, Respondent told Howard to give the earnest money deposit to the selling broker as all of the transactions were to be conducted in Orlando. The $1000 earnest money deposit was given to neither Respondent nor the listing broker, ReMax Southwest in Orlando. The failure of Respondent to follow up to insure that the earnest money deposit had been given to the listing broker in this transaction does not reach the status of fraud or dishonest dealing as Respondent had no such intent. Shortly before the August 21, 1991 closing date, Price advised Respondent that the mortgage lender was asking about the earnest money deposit. Respondent immediately obtained a cashier's check dated August 8, 1991 (Exhibit 2) in the amount of $1000 which Price presented at the closing on August 21, 1991. In his testimony, Respondent acknowledged that he erred in not obtaining the earnest money deposit or failing to check to be sure the deposit had been made with the listing broker. Since Respondent is located in Lakeland and the property being purchased is in Orlando when the closing was held, Respondent thought everything would be simplified if the deposit was held by the listing broker. When the listing broker learned that the deposit of $1000 had never been received by Respondent and placed in escrow, a complaint was made to the Florida Real Estate Commission, and these proceedings followed. Respondent has held licenses from the Florida Real Estate Commission for some 20 years, and this is the first time any charges have been brought against his license.
Recommendation It is Recommended that a Final Order be entered finding O. Dane Streets not guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged. ENTERED this 21st day of January, 1992, in Tallahassee, Florida. K. N. AYERS 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 21st day of January, 1992. Copies furnished to: Steven N. Johnson, Esquire Darlene F. Keller Division of Real Estate Division Director 400 W. Robinson Street Division of Real Estate Post Office Box 1900 400 W. Robinson Street Orlando, FL 32801-1900 Post Office Box 1900 Orlando, FL 32801-1900 O. Dane Streets Post Office Box 6852 Jack McRay, Esquire Lakeland, FL 33807 Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Introduction At all times relevant hereto, Fidelity Standard Mortgage Company (Fidelity Standard) and First Fidelity Financial Services, Inc. (First Fidelity) were mortgage brokers licensed by respondent, Department of Banking and Finance, Division of Finance (Division). In or around early 1983, Fidelity Standard and First Fidelity filed for bankruptcy under Chapter 11, Title 11, United States Code. By virtue of this action, numerous investors lost substantial amounts of money invested with the two brokers. In 1977 the legislature established in chapter 494 a mortgage brokerage guaranty fund from which payment is made to persons "adjudged by a court of competent jurisdiction to have suffered monetary damage as a result of any (unlawful) acts by a mortgage broker... who was licensed under, this chapter at the time the act was committed." Certain conditions must be met in order to establish eligibility for payment from the fund, and payments for claims are limited in the aggregate to $50,000 per mortgage broker, regardless of the number of claimants. 1/ Among other things, section 494.043 requires that a claimant must have (a) received a final judgment in a court of competent jurisdiction against the broker, (b) caused to be issued a writ of execution upon the judgment and the return indicates insufficient assets to satisfy the judgment, (c) made a reasonable search to discover assets of the broker, and has found none, (d) applied any amounts recovered from broker to the damages awarded by the court, and (e) given notice to the Division by certified mail at the time the action was instituted. Where as here, the broker has filed for bankruptcy, steps (b) and (c) need not be taken by the claimant, except to file a claim in the bankruptcy proceeding. There is also a two year period in which investors may perfect their claims. These persons receive first priority to payment from the fund. In the case of both Fidelity Standard and First Fidelity, this period expired on June 18, 1986. Thus, in order to share in the first distribution of moneys from the fund, a claimant had to satisfy the above criteria by that date. In addition to these criteria, a claimant must assign to the Division any interest in the judgment received once all criteria in section 494.043 have been met. The statute imposing this requirement (s. 494.044) provides that this must be done after the claimant has received payment from the fund. In its proposed final order concerning Fidelity Standard entered on August 7, 1986, the Division concluded that the following claimants should receive payment from the fund in the amounts specified below: Claimant Claim Allowed David Swid $ 2,321.00 William & Olivia Petruzel 2,321.00 Vera G. Marino 2,321.00 Benjamin Rosenberg 2,321.00 Lee Rosenberg 2,321.00 Shasha Enterprises 2,321.00 Eli Krause 1,995.00 Eugene Brooks, M.D., P.C. 2,321.00 Eugene Brooks 2,321.00 Steven Jankovich 2,100.50 Stacy Sher 2,100.50 Frederick Low 2,321.00 Patricia Worthley 2,321,00 Alfred Vanderlaan 2,321.00 Ben Sakow 2,048.00 Thomas Shisler 1,229.00 David Irving 2,321.00 Betty Burwell 1,662.00 Alisa Kreimer 2,321.00 Samuel Rudnick 2,321.00 Bonnie & Howard Lenkowitz 1,204.00 Larry & Sally Lenkowitz 525.00 Stuart & Barbara Schrager 2,321.00 Helen & Eugene Loos 2,321.00 Total Payments $50,000.00 In a second order entered the same day involving First Fidelity, the Division proposed that the following claimants receive payment from the fund as indicated below: Claimant Fund Award Swid $ 2,620.00 Morton 2,620.00 Ghane 2,620.00 Petruzel 2,620.00 Marino 2,620.00 B. Rosenberg 2,620.00 L. Rosenberg 2,620.00 Shasha Enterprises 2,620.00 Krause 2,254.00 Brooks, M.D., P.C. 2,620.00 Brooks 2,620.00 Jankovich 2,372.00 Sher 2,372.00 Low 2,620.00 Worthley 2,620.00 Vanderlaan 2,620.00 Sakow 2,313.00 Shisler 1,389.00 Irving 2,620.00 Loos 2,620.00 Total Payments $50,000.00 After the entry of the proposed final order in Case No. 86-3575, petitioners, David Swid, Vera G. Marino et al., Samuel Rudnick et al., and William and Olivia Petruzel, who are named as recipients from the fund, requested a hearing to either contest or support the proposed payout from the fund. In addition, petitioners, Merele Dunne, Ida Orlick and Ilene Kirshner, whose claims were denied, challenged the proposed action. In Case No. 86-3576 involving First Fidelity, petitioners, William and Olivia Petruzel, David Swid, Esmail Ghane and Vera G. Marino et al., who are named as recipients of the fund, have requested a formal hearing to either challenge or support the agency action. Petitioners, Harry and Yetta Neiderman, Harold E. and Eva L. Roys and Harold S. Johnson, whose claims to participate in the initial distribution of the fund were denied, also requested a hearing to contest the action. The Claimants David Swid -- Swid satisfied all statutory criteria in section 494.043 for perfecting his claim against both Fidelity Standard and First Fidelity by June 18, 1986. His partial assignment to the Division of the judgment against the brokers was also filed on June 18, 1986, but was not furnished to the Division until July 9, 1986. Even so, Swid has satisfied all criteria, and is eligible to participate in the initial payout from the fund. Marino et al. -- This group of claimants includes fifteen investors. 2/ Marino et al. received two identical judgments against First Fidelity and Fidelity Standard and otherwise satisfied all statutory criteria by June 18, 1986. Because the group is not entitled to a double recovery, the amount awarded by the court has been divided in half. An assignment of the judgments was filed with the Division on June 12, 1986, but did not reflect the page and book number where the judgments were recorded. However, the judgments were filed with the United States Bankruptcy Court for the Southern District of Florida, and records of that court are not kept by book and page number. Therefore, the assignment was in proper form, and all statutory criteria have been met. William and Olivia Petruzel -- The Petruzels obtained final judgments against First Fidelity and Fidelity Standard on April 11, 1985, in the United States Bankruptcy Court. Partial assignments of the judgments dated April 4, 1986, in favor of the Division were filed with the Division in April 1986. Therefore, all pertinent criteria have been met, and the Petruzels are eligible to share in the initial payout from the fund. Harold E. and Eva L. Roys and Harold S. Johnson -- These parties are claimants against First Fidelity. There is no evidence that they perfected their claims prior to June 18, 1986. Therefore, their claim to participate in the first distribution of moneys from the fund should be denied. Rudnick et al. -- This group of claimants includes six investors in Fidelity Standard. 3/ They obtained a final judgment against Fidelity Standard on June 10, 1986, in Broward County circuit court. Assignments of this judgment to the Division were executed in August 1986, and later filed with the Division. Therefore, Rudnick et al. have qualified for participation. Ida Orlick and Merele Dunne -- These two claimants were investors in Fidelity Standard and First Fidelity. They did not obtain a final judgment against those brokers until June 25, 1986, or after the two-year period to perfect claims had expired. Therefore, they are not entitled to participate in the first distribution of moneys from the fund. 4/ Harry and Yetta Neiderman -- These claimants were investors in First Fidelity. They obtained a final judgment in bankruptcy court against the broker prior to June 18, 1986. The Division proposed to deny the claim on the ground no documentation was submitted to prove that a claim had been filed with the bankruptcy court. At final hearing, the Neidermans submitted a proof of claim which reflected such a claim was previously filed with the court on July 15, 1982. Therefore, all statutory criteria have been met. Irene Morton -- Morton was an investor in First Fidelity who, like the others, lost her investment by virtue of illegal acts of that broker. She has perfected her claim in a timely manner and is entitled to participate in the first distribution of moneys from the fund. Esmail Ghane -- This investor lost approximately $30,000 due to the illicit acts of First Fidelity. He has subsequently obtained a judgment against the broker and has satisfied in a timely manner all other statutory criteria. Therefore, he has perfected his claim and is eligible for payment from the fund. At the same time, it is noted that Ghane's cause of action against the broker arose prior to October 1, 1985, and that he must share in the lower aggregate award ($50,000) that applies to claims arising before that date. Computation of Payments In addition to obtaining judgments for their lost principal, virtually all of the claimants were awarded either prejudgment or post-judgment interest, or both, by the courts adjudicating their claims. Further, some of the claimants have previously received payments from the fund for illegal acts occurring on the part of Franklin Capital Corporation, an affiliated corporation of First Fidelity and Fidelity Standard. By stipulation of counsel, the following amounts are the correct amounts due the claimants for losses arising from illicit acts by Fidelity Standard and First Fidelity assuming their claims are both timely and valid. The amounts are computed after deducting prior payments and by using only the principal amount awarded by the courts, and by including principal and pre- judgment interest. Fidelity Standard (without interest) Fund Claimant Award Swid $ 3,021.00 Petruzel 3,021.00 Marino 3,021.00 B. Rosenberg 3,021.00 L. Rosenberg 3,021.00 Shasha Enterprises 3,021.00 Krause 1,435.00 Brooks, M.D., P.C. 2,870.00 Brooks 1,888.00 Jankovich 1,511.00 Sher 1,511.00 Low 1,813.00 Worthley 1,813.00 Vanderlaan 2,417.00 Sakow 1,511.00 Shisler 906.00 Irving 2,553.00 Burwell 477.00 Kreimer 1,081.00 Rudnick 2,290.00 B & H Lenkowitz 1,686.00 L & S Lenkowitz 70.00 Schrager 3,021.00 Loos 3,021.00 $50,000.00 Fidelity Standard (with prejudgment interest) Claimant Fund Award Swid $ 2,279.50 Petruzel 2,279.50 Marino 2,279.50 B. Rosenberg 2,279.50 L. Rosenberg 2,279.50 Shasha Enterprises 2,279.50 Krause 1,959.50 Brooks, M.D., P.C. 2,279.50 Brooks 2,279.50 Jankovich 2,062.50 Sher 2,062.50 Low 2,279.50 Worthley 2,279.50 Vanderlaan 2,279.50 Sakow 2,011.50 Shisler 1,206.50 Irving 2,279.50 Burwell 1,531.50 Kreimer 2,219.50 Rudnick 2,279.50 B & H Lenkowitz 2,279.50 L & S Lenkowitz 474.50 Schrager 2,279.50 Loos 2,279.50 $ 50,000.00 Fidelity (without Standard interest) Claimant Fund Award Swid $ 3,021.00 Petruzel 3,021.00 Marino 3,021.00 B. Rosenberg 3,021.00 L. Rosenberg 3,021.00 Shasha Enterprises 3,021.00 Krause 1,435.00 Brooks, M.D., P.C. 2,870.00 Brooks 1,888.00 Jankovich 1,511.00 Sher 1,511.00 Low 1,813.00 Worthley 1,813.00 Vanderlaan 2,417.00 Sakow 1,511.00 Shisler 906.00 Irving 2,553.00 Burwell 477.00 Kreimer 1,081.00 Rudnick 2,290.00 B & H Lenkowitz 1,686.00 L & S Lenkowitz 70.00 Schrager 3,021.00 Loos 3,021.00 $50,000.00 Fidelity Standard (with pre-judgement interest) Fund Claimant Award Swid $ 2,279.50 Petruzel 2,279.50 Marino 2,279.50 B. Rosenberg 2,279.50 L. Rosenberg 2,279.50 Shasha Enterprises 2,279.50 Krause 1,959.50 Brooks, M.D., P.C. 2,279.50 Brooks, 2,279.50 Jankovich 2,062.50 Sher 2,062.50 Low 2,279.50 Worthley 2,279.50 Vanderlaan 2,279.50 Sakow 2,011.50 Shisler 1,206.50 Irving 2,279.00 Burwell 1,531.50 Kreimer 2,219.50 Rudnick 2,279.50 B & H Lenkowitz 2,279.50 L & S Lenkowitz 474.50 Schrager 2,279.50 Loos 2,279.50 $50,000.00 First Fidelity (without interest) Claimant Fund Award Neiderman $ 2,995.00 Swid 2,995.00 Morton 2,995.00 Ghane 2,995.00 Petruzel 2,995.00 Marino 2,995.00 B. Rosenberg 2,995.00 L. Rosenberg 2,995.00 Shasha Enterprises 2,995.00 Krause 1,422.50 Brooks, M.D., P.C. 2,845.00 Brooks 1,872.00 Jankovich 1,497.25 Sher 1,497.25 Low 1,797.00 Worthley 1,797.00 Vanderlaan 2,396.00 Sakow 1,497.25 Shisler 898.25 Irving 2,530.50 Loos 2,995.00 $50,000.00 First Fidelity (with prejudgment interest) Fund Claimant Award Neiderman $ 2,489.80 Swid 2,489.80 Morton 2,489.80 Ghane 2,489.80 Petruzel 2,489.80 Marino 2,489.80 B. Rosenberg 2,489.80 L. Rosenberg 2,489.80 Shasha Enterprises 2,489.80 Krause 2,140.44 Brooks, M.D., P.C. 2,489.80 Brooks 2,489.80 Jankovich 2,253.44 Sher 2,253.44 Low 2,489.80 Worthley 2,489.80 Vanderlaan 2,489.80 Sakow 2,197.44 Shisler 1,318.44 Irving 2,489.80 Loos 2,489.80 $50,000.00 The inclusion of post-judgment interest in the calculation of the awards has an inconsequential effect on the amounts to be paid and accordingly has been disregarded.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the initial payment from the mortgage brokerage guaranty fund for damages arising from illicit acts by Fidelity Standard and First Fidelity be made in accordance with the schedules set forth in finding of fact 16, said amounts to include prejudgment interest. All other claims for relief should be DENIED. DONE AND ENTERED this 6th day of January, 1987, at Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1987.
