The Issue The issue in this case is whether the Florida Real Estate Commission should discipline the Respondent, Mounir Albert El Beyrouty, on charges that he failed to deliver rental proceeds, was dishonest in his dealings regarding the rental property, failed to escrow rental deposits and proceeds, and failed to properly reconcile his escrow account.
Findings Of Fact The Respondent, Mounir Albert El Beyrouty, is licensed as a real estate broker in Florida, having been issued license no. BK 596936. He is the qualifying broker for Intermab, Inc., d/b/a Byblos Beach Realty. Acting through the real estate brokerage he qualified, Intermab, Inc., the Respondent orally agreed with Virginia Covington to manage apartment Unit 1-E, Redington Tower 3, located at 17940 Gulf Boulevard in Redington Shores, Florida. Initially, Covington, who is a federal district judge, was the personal representative and sole beneficiary of her mother's estate, which owned the unit; after probate, Judge Covington became the owner of the unit. The Respondent and Judge Covington agreed orally that the Respondent would try to lease the apartment on an annual basis at a lease rate of $850 per month, less a 15 percent commission to the Respondent. Although the Respondent was unable to secure such a lease, he intentionally misled Judge Covington to think there was such a lease and, in January 2008, began paying her $722.50 per month by check drawn on his brokerage operating account. He did this because he wanted her to think highly of his abilities as a real estate broker in the hopes that she would retain him to list the property when she decided to sell. Not long after he began sending monthly checks, the Respondent told Judge Covington that a leak in the kitchen sink should be repaired and a stained mattress should be replaced. He got her permission, took care of both items, and was reimbursed. However, he perceived that Judge Covington did not want to put additional money into the apartment unnecessarily and decided to avoid these kinds of conversations and dealings with her. Instead, he began to expend his own funds to maintain and upgrade the property as he saw fit without telling her. The Respondent secured a paying tenant for the apartment for six weeks during February and March 2008. He collected a $500 security deposit and $5,250 in rent, all of which he deposited in the brokerage operating account. He did not tell Judge Covington about the seasonal renter. Instead, he kept paying her $722.50 per month and continued to lead her to believe there was an annual lease for $850 a month. When the seasonal renter left, the Respondent continued to pay Judge Covington $722.50 per month. In April 2008, the Respondent allowed friends to stay in Judge Covington's apartment free of charge and without paying a security deposit. He did not tell Judge Covington, rationalizing that he was paying her the $722.50 per month she thought was her share of the annual lease payments. The Respondent secured a paying tenant for the apartment for January, February, and March 2009. He collected a $500 security deposit and $9,000 in rent, all of which he deposited in the brokerage operating account. He did not tell Judge Covington about the seasonal renter. Instead, he kept paying her $722.50 per month and continued to lead her to believe there was an annual lease for $850 a month. When the seasonal renter left, the Respondent continued to pay Judge Covington $722.50 per month. The Respondent secured a paying tenant for the apartment for January, February and March 2010. He collected a $500 security deposit and $9,000 in rent, all of which he deposited in the brokerage operating account. He did not tell Judge Covington about the seasonal renter. Instead, he kept paying her $722.50 per month and continued to lead her to believe there was an annual lease for $850 a month. When the seasonal renter left, the Respondent continued to pay Judge Covington $722.50 per month. In July 2010, the Respondent was able to lease the apartment for a year at a monthly rent of $1,300. He also collected a $1,000 security deposit. He deposited this money in the brokerage operating account. He did not tell Judge Covington about the seasonal renter. Instead, he kept paying her $722.50 per month and continued to lead her to believe there was an annual lease for $850 a month. In November 2010, Judge Covington told the Respondent to tell the tenant she wanted to increase the annual lease rate to $935 a month. The Respondent continued to lead her to believe there was an annual lease for $850 a month and told her that he would advise the supposed tenant of the rent increase. Instead, he kept collecting $1,300 a month from the tenant and began paying Judge Covington $794.75 a month (the $935, less a 15 percent commission). He did not tell her there actually was an annual lease for $1,300 a month. The $1,300 annual lease was not renewed in July 2011. The Respondent continued to pay Judge Covington $794.75 a month and to lead her to believe there was an annual lease for $935 a month. In about June 2011, Judge Covington decided to sell her apartment. As the Respondent hoped and planned, she listed it with his brokerage. Judge Covington asked the Respondent to notify the supposed annual tenant, who she believed had been living in the apartment since December 2007, to make sure the tenant would be agreeable to a month-to-month lease during their efforts to sell. The Respondent continued to lead Judge Covington to believe there was such an annual tenant and assured her that he would be able to convince the tenant to cooperate with her plan to sell. From August 29 through October 5, 2011, the Respondent allowed friends to stay in Judge Covington's apartment free of charge and without paying a security deposit. He did not tell Judge Covington, rationalizing that he was paying her the $794.75 per month she thought was her share of the annual lease payments. In November and December 2011, the Respondent rented Judge Covington's apartment to the sister of the court clerk for $850 a month without requiring a security deposit. He did not tell Judge Covington about this rental. The Respondent secured paying tenants for the apartment for February, March and April 2012. He collected a $500 security deposit and $9,000 in rent, all of which he deposited in the brokerage operating account. He did not tell Judge Covington about the seasonal renter. Instead, he kept paying her $794.75 a month and led her to believe there was an annual lease for $935 a month. Despite several price reductions, the Respondent was unable to sell the apartment, and Judge Covington decided to switch selling brokers. In February 2012, she signed a listing agreement with another real estate broker. Later in February 2012, a real estate salesperson showed Judge Covington's apartment to a prospective purchaser. Upon questioning, an older woman told the salesperson that they were paying $3,000 a month in rent. The Respondent told the salesperson to disregard the information because the woman was not thinking straight, or words to that effect, because her husband had been ill. He also told her that the woman's son was actually paying the rent. The salesperson related this information to Judge Covington and also told her that she noticed that the residents were not the same people she happened to see in the apartment on one occasion in February 2012. Upon receiving this information, Judge Covington became suspicious that the Respondent had been dishonest and misleading her. She contacted the State Attorney's Office and the Division regarding the process for filing a complaint against the Respondent. She also arranged for a meeting with the Respondent. When she met with the Respondent, she brought a forensic accountant to review the Respondent's records. The Respondent told them he was sorry that Judge Covington was upset with him, but that he did not owe her any money--to the contrary, that she owed him money. However, he told them he was being audited by the Division and was unable to provide supporting documentation. At the final hearing, the Respondent provided a ledger to support his position that all the rent he collected belonged to him alone because Judge Covington owed him money throughout his dealings with her due to his payments to her, regardless whether her apartment was rented, and the money he spent to maintain and improve the apartment. (This was an after-the-fact justification for his failure to deposit any security deposits or rental payments into his escrow account when, in fact, he did not do so because he did not know it was required.) There is reason to believe that the ledger is not entirely accurate. For example, the Respondent omitted rent collected from at least one occupant of the apartment. It also does not account for the times the Respondent allowed friends and relatives to stay there free of charge, essentially acting as if he owned the apartment. Although the Respondent's testimony regarding the money he paid to maintain and improve the apartment is accepted, his failure to timely apprise Judge Covington regarding those expenditures makes it difficult to be certain about it. Finally, even accepting the ledger at face value, it shows that there were times when the Respondent owed Judge Covington, and not vice-versa. The Division attempted to make a case that the Respondent intended to and attempted to steal rental proceeds. It is unlikely that the Respondent actually targeted a federal judge to victimize in that way. It is more likely that the Respondent was attempting to impress Judge Covington with his skill and expertise as a real estate broker and, ultimately, to be rewarded with the listing on the property when it was sold. In so doing, the Respondent flagrantly violated several laws and rules regarding his professional responsibilities as a licensed Florida real estate broker. Respondent has been a licensed real estate broker for many years and depends on his license to make a living to support himself and his family. He has no prior disciplinary record. However, it has become known in this case that, over the years, he consistently has failed to use his escrow account for rental deposits and proceeds because he did not know it was required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order: finding the Respondent guilty as charged; fining him $2,000; suspending his license for one year; and placing him on probation for a suitable period of time and upon suitable conditions. DONE AND ENTERED this 5th day of August, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 5th day of August, 2013.
The Issue Whether Respondent, Countrywide Home Loans, Inc. (Respondent), discriminated against Petitioner, Wikindson Philippe (Petitioner) in the origination of Petitioner's mortgage loan on the basis of race and national origin in violation of the Florida Fair Housing Act, and, if so, what remedy is available.
Findings Of Fact Petitioner, Wikindson Philippe, is a black male of Haitian origin. He filed a Housing Discrimination Complaint against Respondent on November 5, 2008. At all times material to the allegations of the complaint, Respondent was a lender in partnership with KB Home, a construction entity developing a residential community described in the record as Blackstone. On May 20, 2007, Petitioner and his wife ventured forth to look at homes for purchase. They initially went to a KB Home development to inquire about homes but were told it was sold out. The proceeded to a nearby development, Blackstone, and met with a salesman who Petitioner described as "aggressive." The salesman showed Petitioner various lots and Petitioner and his wife were impressed by the community. In order to get "pre-qualified" for a loan to purchase a home, the KB Home salesman referred the couple to Lydia Lapotaire, a loan consultant who was located in Respondent's sales center. Mrs. Lapotaire was employed by Countrywide KB Home Loans, the preferred lender for KB Home residential properties. Working in tandem, KB Home the builder/developer and Countrywide KB Home Loans, the preferred lender, sought to accommodate Petitioner's interest in purchasing the Blackstone home. Both entities had a financial interest in securing Petitioner's business. Despite his concerns that he was being inappropriately pressured to purchase a home, Petitioner signed a contract to acquire a lot and single-family dwelling to be constructed on the lot. The purchase agreement recognized that the final purchase price could be stated in an addendum to the initial contract. Based upon the purchase agreement Petitioner planned to acquire a home with a total sales price of $302,490.00. At all times material to the negotiation of the purchase agreement, Petitioner had advised the salesman and Mrs. Lapotaire that he could not afford to pay more than $1,600.00 per month for a mortgage payment. Petitioner was not concerned regarding the amount of the loan so long as the total monthly payment did not exceed his cap. Because he relied on the representations of the salesman and the lender's consultant and wanted to have the home, Petitioner deposited $5,000.00 down on the purchase agreement. At all times material to the purchase, both Mrs. Lapotaire and the salesman assured Petitioner that the lender would work with him to allow him to acquire the home. Nevertheless, when Petitioner consulted a friend who had more experience in the purchase of homes, Petitioner became concerned that the home he desired could not be acquired for the amount he could pay. When Petitioner brought these concerns to the salesman's attention he was advised that he would lose his deposit if he attempted to cancel the contract. Petitioner believed that the only way he could recover his deposit money was to be denied for the loan. To that end, Petitioner and his wife selected upgrades from the base price of the home. In so doing, Petitioner was required to make additional deposits. In accordance with the time lines specified by the builder, Petitioner deposited a total of $20,000 toward the purchase price of the home. As evidenced by Petitioner's Exhibit B (also admitted into the record as Respondent's Exhibit 7), Petitioner's loan application for the Blackstone home was not approved. The Notice of Action Taken specified several reasons Countrywide KB Home Loans was unable to approve the loan. Petitioner claimed he did not receive the notice; it was sent to an incorrect address. Instead of being addressed to apartment 772, it was addressed to apartment 72. In the meanwhile, the lender continued to seek financing for Petitioner's purchase. At that time, Respondent had an affiliated company called Full Spectrum Lending that worked as a subprime unit. By going that route it was presumed the buyer was still actively seeking to purchase the home and that various lending scenarios could be explored to determine whether Petitioner might qualify. It is undisputed that Petitioner did not qualify for a loan under the standard loan scenario. None of the lending procedures used by Respondent, Countrywide KB Home Loans, or Full Spectrum Lending required Petitioner to disclose his race or ethnic origin. In fact, Petitioner did not prove that any of the loan processors or underwriters knew Petitioner's race or ethnic origin. There is no evidence that Petitioner's race and ethnic origins were considered in the decision to approve or not approve the loan. The motivations of Respondent and KB Home were likely similar. As joint venture partners, they would have wanted Petitioner to be approved for a loan and to close on it. KB Home would not likely decline to sell to Petitioner nor want to refund his deposit. Respondent would not likely profit from not approving the loan. None of the business reasons for wanting the loan and sale to be consummated were based upon Petitioner's race or ethnic origin. In short, financial interests and not a desire to harm a person of Petitioner's race or ethnic origin were the key reasons for the seller and lender to work in concert to achieve the closing on Petitioner's home. After an extended amount of time, Petitioner did close on the home. He claimed that he was pressured into closing due to the fear that his deposit would be lost but he nevertheless signed all of the closing documents necessary to own and finance the home. It was undoubtedly too expensive for Petitioner. Petitioner has not been able to keep current on his mortgage obligation. Facing foreclosure, he now asserts that Respondent's actions were to take advantage of him based upon his race or ethnic origin. Respondent and KB Home may have unduly pressured Petitioner to purchase a home he could not afford, but there is no evidence they did so based upon his race or ethnic origin. Petitioner is an articulate person. Through out these proceedings he has stated his position on the issues of the case in a well-reasoned and cogent manner. He is understandably disenchanted with the financial results of his home purchase. He has, however, continued to enjoy the residence and his wife likes the home. Petitioner's purchase agreement provided, in pertinent part: 5.5 Failure to Obtain Commitment. Prior to the Loan Approval Deadline, if Buyer's loan application is denied or Buyer obtains an unsatisfactory loan approval (in Buyer's reasonable discretion) Buyer may cancel this Agreement with written notice to Seller and receive a refund of all Deposits. Based upon the Notice of Action Taken (dated July 13, 2007); Petitioner could have canceled the purchase agreement. He chose to close on the transaction. If Petitioner was not approved for a loan or if the terms of a loan were unreasonable, Petitioner did not have to accept the terms of the loan. Petitioner erroneously presumed he would not receive a refund of his deposit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint of discrimination filed by Petitioner. DONE AND ENTERED this 2nd day of February, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 2nd day of February, 2010. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert C. Graham, Esquire Akerman Senterfitt 50 North Laura Street, Suite 2500 Jacksonville, Florida 32202 Wikindson Philippe 2413 Country Pond Court St. Cloud, Florida 34771-8868 COPY FURNISHED BY CERTIFIED MAIL Sylvia Bakrevski Country Wide Home Loans 5220 Las Virgenes Road Calabasas, California 91302 (Certification No. 91 7108 2133 3935 7995 2966)
Findings Of Fact At all times pertinent to the incidents involved herein, the Respondent, Jerry L. Daniel, was licensed as a real estate broker in Florida under license number 365403. Petitioner, Division of Real Estate (Division), is and was the state agency charged with the responsibility for governing the conduct of real estate brokers in Florida. On August 19, 1984, and for several years prior thereto, Doteileen Mariner owned a three bedroom home located at 1260 Schenly Street, Port Charlotte, Florida. The property was encumbered by a first mortgage held by the First Federal Savings and Loan Association in Punta Gorda, Florida. Sometime during 1983 she decided to sell this property and made inquiries toward that end. She was first contacted by Roger King, a real estate agent, with a view toward purchasing her property and in August, 1984, Mr. King presented her with a contract to buy the property. King and the Respondent, who were purchasing it together, were to assume the existing first mortgage and give her a second, balloon, mortgage in the amount of $23,000.00 for five years with a $5,000.00 down payment and payment of interest only thereafter until the end of the period of the mortgage. Mrs. Mariner agreed to this proposal and signed a contract for sale which reflected a total purchase price of $69,500.00 on or about August 22, 1984. She was not given a copy of the contract at that time, however, and Petitioner's Exhibit 2, which purports to be a contract for the sale of the property, bearing her signature and that of the Respondent, dated August 22, 1984, reflects a total purchase price of $74,900.00 with $18,900.00 paid as deposit, and a new mortgage of $56,000.00. According to Mrs. Mariner, these were not the figures which appeared on the contract she signed. At the same time, Mrs. Mariner also signed an addendum to the original contract, dated August 21, 1984, one day prior to the contract which it purports to supplement, which is also signed by Respondent and Mr. King and which reveals that the existing first mortgage on $29,335.00 was to be paid at closing; that the seller, Mrs. Mariner, was to receive $5,000.00 in cash at closing; and that a second mortgage for $23,000.00 would be held for 60 months with interest payments at 10% per year to be made monthly in the amount of $191.67 each. Mrs. Mariner received the $5,000.00 down payment but did not receive the $18,900.00 deposit and, to the best of her recollection, did not agree to a new first mortgage being substituted for the existing first mortgage she had with First Federal. Respondent, on the other hand, indicates he made very clear to Mrs. Mariner, and the documentation which he admits to signing reflects, that the original first mortgage was to be paid off and a second first mortgage for a larger amount substituted therefor. Examination of the contract shows it has been modified by alteration of the figures thereon. When this is done is not known. Mrs. Mariner moved out of the property the next day after the contract was signed and at the closing, held in September, 1984, was given an envelope with certain documents in it which included a second mortgage on the property in the amount of $23,000.00 signed by both Respondent and Mr. King on September 24, 1984. This second mortgage included a clause which subordinated it to the new first mortgage on the property which was dated July 25, 1985, nine months subsequent to the date of the second mortgage. Mrs. Mariner did not examine the documents at that time but accepted her $5,000.00 down payment and left the area. She assumed the property was transferred and, in fact, received her monthly interest payments on time for several years. However, after a period of time, the payments stopped and after several months of trying unsuccessfully to reach Respondent, she finally contacted him and arranged to come back to Florida to meet with him. When she met with Respondent, he indicated he was having financial difficulties and was unable to make the monthly payments. However, he offered to deed her property back to her and to convey to her two other properties he owned, both of which were encumbered by substantial first mortgages. Both had some equity in them which, he claims, when added to the equity in her original property, would be adequate to make her whole and enable her to avoid any financial loss on her part. On July 10, 1986, Respondent executed a Quit Claim Deed to Mrs. Mariner for the property which she originally owned. This deed showed a first mortgage of $58,000.00 compared to the $29,355.00 first mortgage she originally had. Therefore, as a result of her dealings with the Respondent, she had her property back temporarily, had received $5,000.00 in cash, and had received some monthly payments of $191.67 each. She also had an indebtedness of approximately $30,645.00 more than she had when she met Respondent and because of her inability to make the payments on the new first mortgage, lost the property to foreclosure. Respondent and Mr. King arranged for interim financing on the Mariner property at a high rate of interest with a temporary lender until such time as they could arrange new first mortgage financing. This was done several months later and Respondent encumbered the property with a new mortgage in the amount of $58,400.00. That new first mortgage, dated June 25, 1985, was made payable to Standard Federal Savings and Loan Association and was recorded in the public records of Charlotte Count, Florida on July 2, 1985, prior to the recordation of the original second mortgage, dated September 24, 1984, which Respondent and King had given to Mrs. Mariner. It should also be noted that this second mortgage, dated September 24, 1984, reflects at the bottom of page 1, "subject to and inferior to that certain mortgage to Standard Federal Savings and Loan Association dated June 25, 1985 [sic], filed July 2, 1985 sic; recorded in Official Records Book 823, page 779 of the Public Records of Charlotte County, Florida in the original principal amount of $58,400.00." Respondent has not explained how a mortgage executed on September 24, 1984 can refer to as existing and legitimately be made subordinate to a first mortgage which did not come into existence until 9 months later. He claims total ignorance of how that happened. He assumed that since all documents were turned over to the title company at the time of closing, the second mortgage would be recorded at that time. This testimony is ingenuous and unbelievable. Mrs. Mariner received approximately $3,200.00 in interest payments from Respondent in addition to the $5,000.00 down payment. In the Spring of 1986, she was served with a summons for foreclosure of the first mortgage on her property. She has now lost the property and the difference between her equity in it at the time of sale to Respondent and the Deposit she received. Petitioner has alleged that Mrs. Mariner's loss was approximately $39,000.00. The exact amount of loss is irrelevant. What is pertinent is not the loss to Mrs. Mariner but whether Respondent's conduct here constitutes misconduct and it obviously does. Respondent denies any responsibility for this situation. He claims he was approached by Roger King in 1984 with the opportunity to buy Mrs. Mariner's property. At the time, he was involved in investing in family homes owning two or three at that time and up to twenty to thirty thereafter. At the time of this transaction, he had had only one other deal with Mr. King who had done the negotiations for the purchase of the Mariner property and drafted the documents. Respondent, however, is the only buyer listed on the contract though King appears as a mortgagor on the second mortgage. Mr. Daniel claims he saw Mrs. Mariner first at the closing at Federal Title Insurance Company on September 24, 1984. He relates that the contract for the purchase of the property and the addendum were signed prior to closing and he was not present at the time Mrs. Mariner signed them. He claims not to know who got her to sign them. Respondent claims, however, that he explained all the provisions of the transaction to Mrs. Mariner prior to the closing including the fact that her existing first mortgage would be paid off; that a new first mortgage in a higher amount would be placed on the property; and that the mortgage she was holding would be subordinate to the new first mortgage. She denies this. He asserts that he took out 90 day interim financing arrangement with Family Credit at a higher interest rate for the sole purpose of allowing the deal to close so that Mrs. Mariner could be on her way to Delaware. His assertions of concern for Mrs. Mariner's welfare are not believable. Respondent claims he told Mrs. Mariner at closing that her second mortgage would not be recorded until after permanent financing through a new first mortgage was secured and that the new institutional mortgage would be superior to hers. She does not recall this, however, but her testimony was so indefinite, vague, and unsure, it is difficult to determine what Mrs. Mariner was told. As was found before, his contention is unworthy of belief. Respondent also contends that the rental income from the property was supposed to be between $700.00 and $800.00 per month which would have been sufficient to pay not only the monthly payment on the first mortgage but also the interest payment on the second mortgage. However, these expectations were not realized and he received only rental income of $550.00 per month which was sufficient to pay only the first mortgage. Because of financial reverses he was having at the time with some of his commercial properties, which put him in a poor cash flow position, he stopped making payments on both the first and second mortgages early in 1986 and subsequently lost Mrs. Mariner's property to foreclosure. Respondent overlooks the fact that the lower rental he obtained, $550.00 per month, was more than sufficient to cover the $191.67 per month owed to Mrs. Mariner and still return him a substantial return on his investment of $5,000.00 if he had been a legitimate investor in rental property. It is obvious from the evidence that Respondent had far more in mind than that reasonable return. Respondent contends it was never his intention not to pay Mrs. Mariner. However, Respondent bought a piece of property which had a current first mortgage of $29,335.00. He replaced that with a new first mortgage of $58,400.00 which gave him a cash surplus of approximately $27,000.00. The second mortgage which he owed to Mrs. Mariner was for $23,000.00, well below the amount he had received in cash as a result of the refinancing. It is clear that Respondent took this money and failed to pay Mrs. Mariner even though there were adequate funds available from the refinancing to do so. It is clear that he intended for her to be in a subordinate position and that he intended to make, and did make, a substantial amount of money out of the transaction. He tried to deed Mrs. Mariner's property back to her, along with two other properties in which he had equity, to reduce her loss, but she refused his offer. His financial difficulties resulted in his going into bankruptcy through which he lost his entire financial base. Since his bankruptcy, Respondent has been employed as a broker/manager at the Bee Ridge office of Schlott Realtors and as a part of his duties, is responsible for hiring, training, and supervising sales associates. Larry D. Romito, manager and president of the Florida division of Schlott Realty, learned of the Respondent from two or three of his existing sales associates who spoke highly of him. As a result of their recommendations, Mr. Romito sought Respondent out and spent a substantial amount of time with him before offering him a job with the company. During more than fifteen hours of interview time, Respondent spoke quite frankly about his financial difficulties and their effect on him as well as what led up to them. Since Respondent has come with the company, his performance has been exemplary. He has been involved in excess of one thousand transactions and his leadership has been remarkable. There are nine managers in the company and Respondent is to be recognized as the number one manager of all divisions at the next award period. Mrs. Romito has found Respondent to be very objective and reliable and has had no questions with regard to Respondent's honest or integrity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a real estate broker be revoked and that he pay an administrative fine of $1,000.00 but that the revocation be suspended for a period of three years under such terms and conditions as may be prescribed by the Commission. RECOMMENDED this 16th day of March, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4573 The following constituted 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. FOR THE PETITIONER; Accepted and incorporated herein Rejected. At the time in issue, Respondent's license was issued c/o Jerry Daniels Realty, not Schlott Of Florida. Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein except for that statement that the new first mortgage was concealed from Federal Savings and Loan Association of Punta Gorda. Rejected as a restatement of testimony which is accurately recited. Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein FOR THE RESPONDENT; Accepted in so far as it indicates the contract was drafted by someone other than Mrs. Mariner and that the contract and addendum were signed at her house. Accepted and incorporated herein Rejected as contra to the weight of the evidence. Mrs. Mariner denies being told recording her mortgage was being withheld. Rejected as a restatement of testimony. Accepted and incorporated herein Accepted and incorporated herein First sentence accepted and incorporated herein. Second sentence not a Finding of Fact but a restatement of the testimony. Accepted and incorporated herein COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Dana J. Watts, Esquire 700 Sarasota Way Sarasota, Florida 34236 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether the Respondent committed the violations alleged in the Amended Administrative Complaint and Notice of Rights dated June 16, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The OFR is the state agency responsible for regulating mortgage brokerage and mortgage lending in the State of Florida and for licensing and regulating mortgage brokers. §§ 494.0011(1); 494.0033(2), Fla. Stat. At the time of the final hearing, Mr. Razor held an inactive mortgage broker's license. The license was inactive because Mr. Razor did not apply for a renewal of his license when it expired on August 31, 2009. His license could be reactivated should he submit an application for renewal. Mr. Razor was a member of the Florida Bar and a practicing attorney in Florida until, in an opinion issued September 11, 2007, the Florida Supreme Court ordered Mr. Razor suspended from the practice of law for a period of 18 months. See Florida Bar v. Razor, 973 So. 2d 1125 (Fla. 2007). In its opinion, the court approved the findings of fact contained in the Report of the Referee; approved the Referee's findings that Mr. Razor had violated Rules Regulating the Florida Bar 3-4.2, 3-4.3, 4-5.3(b), and 4-8.4(a); and approved the Referee's recommendation that Mr. Razor's license to practice law be suspended for a period of 18 months. Pertinent to this proceeding, Rules Regulating the Florida Bar 3.4-3 provides: The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all- inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney's relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline. The Referee based his recommendation that Mr. Razor's license to practice law be suspended for 18 months on "Respondent's [Mr. Razor's] conduct in allowing his collaborator (a suspended attorney) to practice law in an attempt to extort money; his ratification of the misconduct by failing to take immediate remedial action; his attempts to cover for the suspended attorney by defending the letter during the Bar investigation; and his inconsistent defense (lack of knowledge) at the live and final hearings." These acts constitute dishonest dealing. Mr. Razor's license to practice law was suspended 30 days after September 11, 2007, or on October 11, 2007. Mr. Razor did not report the suspension to the OFR because he did not believe it to be a reportable offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Office of Financial Regulation enter a final order finding that Arthur Nathan Razor violated Section 494.0041(2)(i) and (p), Florida Statutes, and revoking his Florida mortgage broker's license. DONE AND ENTERED this 9th day of June, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 9th day of June, 2010.
Findings Of Fact Respondent was issued Mortgage Broker License No. 3082 on September 3, 1974 by Petitioner. Respondent conducted certain transactions under its Mortgage Broker License during the period from September, 1973 until April, 1974. Respondent found client investors who had funds which they wished to invest in mortgages which would pay a greater return in interest than the average land mortgage. The transactions involved the purchase of a promissory note from a land development corporation secured by a mortgage deed on land ostensibly owned by the developer, in which the latter reserved the right and was authorized to convey the premises to a purchaser under an installment land contract subject to the lien of the mortgage. The deed further provided that the developer would deliver to a bank as an escrow agent a copy of any such agreement for deed and a quitclaim deed which would be held in escrow unless a default was established under the mortgage deed. What the investor would receive in such cases would be the developer's assignment of an agreement for deed collateralized by the mortgage deed. The issuance of these high interest notes were for the purpose of enabling the development company to make certain improvements on the land which they were obligated to do under sales contracts. In the transactions in question, Respondent dealt through Financial Resources Corporation of Ft. Lauderdale, Florida to which he remitted the investors funds, less an amount retained for fees or commissions. The land developer/borrower would then issue the note and mortgage in the face amount of the total investment made by the investor. The detailed procedure was that when an investor inquired concerning such mortgages, Respondent would determine from Financial Resources Corporation if any were available. It was the practice of Respondent's President then to look at the land development, determine if, in fact, the land was in development and had streets and the like, and to read pertinent documents concerning the development. He would then proceed to accept the full sum of the investment from the investor pursuant to an agreement by which the investor, in consideration of the stated sum, would authorize Respondent to use its best efforts to secure collateralized promissory notes at a minimum percentage of interest on the declining balance with principal and interest payable monthly if held to maturity. Respondent would then deposit the investor's check, usually on the same day as received, and then in several days send a notice to Financial Resources Corporation authorizing it to prepare and execute a self-amortizing monthly principal and interest promissory note with quitclaim deed in the amount of the investment, together with a check representing the proceeds of the Investment less the Respondent's fee or commission, and a sum for intangible tax on the transaction. Financial would thereafter return to Respondent a copy of the note and mortgage in exchange for the funds remitted. The recorded mortgages would be sent to Respondent within a month or so thereafter. Respondent had no agreements in writing with the land developer, nor with Financial Resources Corporation. Respondent claimed that its fees for services were set by Financial Resources Corporation which usually amounted to about 12 percent of the face amount of the investment, but which was sometimes more and frequently less than that authorized under the applicable statutes and regulations. Respondent did not maintain an escrow bank account and all funds received from investors were deposited into the corporate bank account of the firm. Respondent's agreements with investors set no specific term or period of time in which the secured promissory notes were to be obtained although its president would customarily tell investors that it would take some time for the transaction to be consummated, and that they could not expect to receive the recorded mortgages right away (testimony of Mr. Montague, Petitioner's Exhibits 2-10). Respondent discontinued transactions as described above in April, 1974 because he was dissatisfied with the business. He had been informed that certain lands under some of the mortgages had not been sold until after the mortgage had been executed and that this was in violation of State law. In the fall of that year, he received a memorandum from the State Comptroller on the subject of escrow accounts, dated October 11, 1974, which warned mortgage brokers in the state concerning the practice of remitting investors' funds to land developers in anticipation of receiving a recorded mortgage and note (testimony of Mr. Montague, Respondent's Exhibit 9). In 1975,a financial examiner from Petitioner's office was sent to the office of Respondent to examine his books and records. Pursuant to that examination, it was determined that Respondent had committed various violations of Chapter 494, F.S. on certain transactions. The following findings of fact are made with respect to the transactions in question: Allegation: That Respondent took and received deposits of money from Robert E. Creighton, Hazel R. Hardesty, J. Wilfred Caron, Rose A. Hoadley, Margaret A. Gregory and Willard A. Kotthaus, in the regular course of business, and failed to immediately place such said funds in an escrow or trust account as required by Section 494.05(1) , F.S. As heretofore stated, the Respondent did not maintain an escrow trust account with respect to any of the above-stated transactions. The above- mentioned individuals had authorized Respondent to disburse the funds immediately upon receipt (testimony of Mr. Montague, Supplemented by Exhibits 3- 8). Allegation: Respondent failed to maintain adequate records in violation of Section 494.06(3), F.S., in that its files contained no written agreements on transactions with Della W. Shaw, Lantana Sheet Metal and A.C. Inc., and another transaction with Lantana Sheet Metal. The agreement between Della Shaw and Respondent, although not present in Respondent's file at the time of examination of its records by Petitioner's representative, had been executed on October 15, 1975, and presently is contained in the records of the Respondent. It had been taken out temporarily by one of Respondent's associates who also had Della Shaw as a client. Respondent had entered into two transactions with the trustee of the pension fund and profit sharing plan of Lantana Sheet Metal, one for ten thousand dollars from the pension fund and one for three thousand dollars from the profit sharing plan. At the time of these investments there were written contracts which were executed by the parties. The books and records of both the pension fund and the profit sharing fund were maintained at Respondent's office by a firm which administered both plans. The agreements pertaining to the Lantana transactions were requested and withdrawn from Respondent's files by the trustee of the Lantana funds. Consequently, they did not appear in the records of the corporation at the time of examination by Petitioner's representative (Petitioner's Exhibits 2 and 4; Respondent's Exhibit 10). Allegation: Respondent failed on numerous loan purchase agreements to establish the term for which the agreement was to remain in force before the return of the deposit for nonper- formance could be required by the investor, in violation of Chapter 3-3.06, F.A.C. The transactions in question did not involve applications for mortgage loan, but agreements to purchase secured promissory notes. Respondent's clients were investors/purchasers, not borrowers (testimony of Mr. Montague; Petitioner's Exh. 2-10). Allegation: Respondent charged and accepted fees or commissions in excess of the maximum allowable in violation of Section 494.08(4), F.S., and Chapter 3-3.08(3) and (4), F.A.C., on trans- actions involving Rosa Eichelberger, overcharge of $10.90, Lantana Sheet Metal, overcharge of $62.60; Lantana Sheet Metal, overcharge of $10.91; Rose A. Hoadley, overcharge of $9.10; and Margaret A. Gregory, overcharge of $9.10.
Findings Of Fact During 1984 Philip Dennis on his own behalf and on behalf of Medi Fund Inc. negotiated in Florida with William Kickliter for the purpose of arranging a mortgage loan. During those negotiations Respondent Dennis represented to Kickliter that both he and Respondent Medi Fund, Inc., were mortgage brokers licensed by the State of Florida. In his stated capacity as a mortgage broker, Respondent Dennis drafted and entered into an agreement with Kickliter whereby Kickliter would obtain a mortgage loan from Respondent Medi Fund, Inc., for financing an ongoing business. Respondent Dennis signed the agreement between Kickliter and Respondent Medi Fund, Inc., pursuant to which Kickliter gave to Respondent Dennis a refundable advance fee of $1,500 by check made payable to Respondent Medi Fund, Inc. No mortgage loan was ever consummated. When Kickliter made demand on Respondent Dennis for the return of his monies, Respondent Dennis sent to Kickliter a post-dated check for only $850 with a notation on that check that it was allegedly for full payment of the refundable advance fee. When Kickliter deposited that check, the check "bounced." Respondent Dennis then stopped payment on the check. Kickliter's refundable advance fee has never been refunded to him by either Respondent Dennis or Respondent Medi Fund, Inc. In 1983 Respondent Dennis negotiated in Florida with Robert N. Goldstein to secure financing so that Goldstein's company Hospitality Consultants, Inc., could acquire a hotel. Respondent Dennis drafted and presented to Goldstein and Goldstein's partner Thomas Palumbo an agreement between Respondent Dennis and Hospitality Consultants, Inc., whereby Respondent Dennis would seek mortgage funding for the corporation. In that agreement Respondent Dennis designated himself as "the broker", a designation which matched his oral representations to Goldstein that he was a mortgage broker licensed in the State of Florida. Respondent Dennis executed that agreement on March 11, 1983, on his own behalf. In 1985 Respondent Dennis negotiated in Florida with Bryan Miller of Deco Redevelopment Corp. to secure real estate mortgage loan financing for hotels located in Miami Beach. Respondent Dennis on behalf of Respondent Medi Funds Inc., drafted an agreement whereby Respondent Medi Funds Inc. would secure financing for real estate renovation and new construction of a hotel complex to be built in Miami Beach. Respondent Dennis entered into that agreement on behalf of Respondent Medi Fund Inc. Pursuant to, that agreement, Miller paid to Respondent Dennis on behalf of Respondent Medi Funds Inc., the sum of $5,000 as a refundable advance fee. Neither Respondent Dennis nor Respondent Medi Funds Inc. has arranged any mortgage loan to Deco Redevelopment Corp. Furthers the $5,090 Refundable advance fee paid to Respondents Dennis and Medi Fund Inc. has never been refunded. In 1985 Respondent Dennis while in Florida negotiated with Millie Bulkeley of Arizona for mortgage loan financing for a mobile home park in Arizona. Thereafter Respondent Dennis drafted and entered into an agreement with Bulkeley whereby Respondent Medi Fund Inc., would secure real estate financing for her. Pursuant to that agreement Bulkeley deposited into Respondent Dennis's bank account in New York $20,000 as a refundable advance fee. No financing was ever secured for the project by Respondent Dennis or Respondent Medi Fund Inc. and the refundable advance fee has never been refunded. During 1983, 1984, and 1985 Respondent Dennis represented himself as being an officer of Respondent Medi Fund Inc. and misrepresented to persons both orally and in writing that both Respondent Dennis and Respondent Medi Fund, Inc., were mortgage brokers licensed by the State of Florida. During the time period of December 1982 up to and including May 2, 1986, neither Respondent Dennis nor Respondent Medi Fund, Inc., has been a licensed mortgage broker. By Order entered April 16, 1986, in this cause Petitioner was awarded certain costs against Respondent Medi Funds Inc., as a result of Medi Fund, Inc.'s, refusal to engage in discovery. Those reasonable costs are $45 for the attendance of the court reporter, $318.10 for the travel expense incurred by Petitioner's attorney, and $1,275 as an attorney's fee for Petitioner's attorney. The Order of April 16, 1986, also required Respondent Medi Funds Inc. to return to Petitioner the witness fee and mileage fee paid to it before its non-appearance at its scheduled deposition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondents Philip Dennis and Medi Fund, Inc., guilty of the allegations contained within the Cease and Desist Order filed herein ordering Respondents Dennis and Medi Fund, Inc. to forthwith and immediately cease and desist from any further violations of Chapter 494, Florida Statutes, requiring Medi Funds Inc. to return to the State of Florida the witness fee and mileage paid to it pursuant to the April 16, 1986 Order entered herein and requiring Respondent Medi Funds Inc. to pay to the State of Florida the sum of $1,638.10, as further required by the April 16, 1986 Order entered herein. DONE and RECOMMENDED this 29th day of August 1986 at Tallahassee Florida. LINDA M. RIGOT 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 29th day of August, 1986. COPIES FURNISHED: Gerald Lewis, Comptroller State of Florida The Capitol Tallahassee, Florida 32301 Deborah Hoffman, Esquire Thomas E. Glick Esquire Office of Comptroller 401 N.W. 2nd Avenue, Suite 870 Miami Florida 33128 Philip Dennis 2124 Northeast 167 Street North Miami Beach, Florida 33160 Medi Funds Inc., a Florida Corporation c/o Philip Dennis 2124 Northeast 167 Street North Miami Beach, Florida 33160
The Issue Whether Respondents committed the offenses set forth in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints related to the real estate profession pursuant to the laws of the State of Florida. Respondent Valyne Batchelor is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0311190 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent Batchelor was in care of Adventure Properties, Inc., 10800 N. Military Trail, Palm Beach Gardens, Florida 33410. Respondent Adventure Properties, Inc. was at all times pertinent to this proceeding a corporation registered as a real estate broker in the State of Florida having been issued license number 0238654 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent Adventure Properties, Inc., was at the address of 10800 N. Military Trail, Palm Beach Gardens, Florida 33410. At all times pertinent hereto, Respondent Batchelor was licensed and operating as a qualifying broker and officer of Respondent Adventure Properties, Inc. At all times pertinent hereto, Respondent Batchelor was a one-half owner of Dream Home Builders of Royal Palm Beach, Inc. (Dream Home). Joel B. Wingate was in the land clearing business and had done work prior to September 1988 for Dream Home and Dream Home's subsidiary, Redi Concrete. On September 18, 1988, Dream Home, the owner of a house located at 5510 Royal Palm Beach Boulevard, Royal Palm Beach, Florida, entered into a contract to sell that house to Joel B. Wingate, his wife, Eva C. Wingate, and his mother, Sarah F. Wingate. The contract reflected that the purchase price of the property was $87,400. The contract reflected that the sum of $4,400 was received by Adventure Properties as a deposit. The balance of the purchase price was to be paid by a first mortgage in the amount of $69,900 to be obtained by the Buyers from a lending institution and by a second mortgage in favor of Seller in the amount of $13,100 that was to be amortized over a period of 30 years with a balloon payment at the end of 5 years. Respondent Batchelor executed the contract on behalf of Adventure Properties and on behalf of Dream Home. In addition, Respondent Batchelor signed a statement on the face of the contract which acknowledged receipt of the deposit that was to have been held in escrow. The sum of $4,400 was not paid over to Respondent Adventure Properties or to Respondent Batchelor by the Wingates at the time the contract was executed and there never was a deposit made into the escrow account of Adventure Properties. Instead, Mr. Wingate agreed to pay the sum of $4,400.00 prior to the closing from sums he would earn from work he was performing for Redi Concrete. All parties pertinent to this transaction, including the bank that financed the first mortgage, knew that the Wingates had not paid that sum. The Wingates applied for financing with Security First Federal for financing of the first mortgage. The application for the loan was in the name of Sarah F. Wingate because of Joel Wingate's poor credit. On September 17, 1988, a "Good Faith Estimate of Settlement Charges" was prepared by Security First Federal which estimated that the settlement charges that would be due from the Wingates at closing would equal $4,328.30. On September 19, 1988, the Wingates, as buyer, and Dream Home, as seller, executed an addendum to the contract which provided that the Seller would pay up to $4,400 in closing costs and that the amount of the second mortgage would be increased from the sum of $13,100 to the sum of $17,500. The addendum provided, in pertinent part, as follows: Seller to pay up to $4,400 in closing costs. Buyer agrees to give seller a second mortgage in the amount of $17,500. Said Mortgage to be for a term of one year from date of contract and is to be paid as follows: Buyer agrees to do work for Redi Concrete, Inc. consisting of clearing, digging of necessary fill, building and compact ion of house pads according to Palm Beach County Building Codes, all grading and trash removal at contract price of $2,450 per lot. Of this amount $1,250 is to be applied to second mortgage until mortgage is paid in full. Additionally, any unused portion of the $4,400 allowance for closing costs not used for that purpose is to be applied to the second mortgage of $17,500. If any portion of this agreement is not kept, Redi Concrete, Inc. reserves the option to impose interest at the rate of 10% per annum against any unpaid amount of second mortgage. The fact that the amount of closing costs Dream Homes agreed to pay on behalf of the Wingates ($4,400) was identical to the amount that the Wingates were supposed to pay as a deposit ($4,400) was coincidence. Respondent Batchelor executed the addendum to the contract in her capacity as an officer of Dream Home. There was no attempt on the part of Respondents to deceive the Wingates, who had agreed to this method of financing the purchase. On October 24, 1990, the transaction closed. The buyers executed the first mortgage in favor of Security First Federal Savings and Loan Association in the principal amount of $69,900, and a second purchase money mortgage in favor of Dream Home in the principal amount of $13,100. (There was no explanation as to why the second mortgage that was executed at the closing was for $13,100 instead of for $17,500. Dream Home's letter of October 27, 1988, to the Wingates, signed by Ms. Batchelor, refers to a revised second mortgage that should be executed by the Wingates and recorded. There was no evidence that the revised second mortgage was, in fact, delivered to the Wingates or executed by them.) The second mortgage note required monthly payments commencing November 24, 1988, with a balloon payment of $12,965.22 due on October 24, 1991. The Wingates were aware of the manner in which their purchase of this property was financed. There was insufficient evidence to establish that Respondents dealt with the Wingates in anything other than an honest, straightforward manner. The unusual owner financing involved in this transaction was an attempt to accommodate the buyers. There was no intent by Respondents to deceive the Wingates, Dream Home, Security First Federal, or any other party pertinent to these proceedings. There was insufficient evidence to establish that the Wingates, Dream Home, Security First Federal, or any other party pertinent to these proceedings was, in fact, deceived or tricked by any act of Respondents. The Wingates moved into the premises prior to the closing of the transaction. Ms. Batchelor did not give the Wingates permission to move into the house prior to closing and she did not personally inform the Wingates that they would have to pay rent if they moved in prior to closing. Ms. Batchelor had been told by her business associate, Mr. Vander Meer, that the Wingates would pay a per diem rental fee until the closing. On October 27, 1990, Ms. Batchelor, on behalf of Dream Home, advised the Wingates that they were being charged a rental fee of $27.54 per day that they had occupancy prior to the closing. For the 36 days the Wingates were in the house prior to closing, the total rental claimed came to $920.52. The Wingates disputed the amount claimed for rent and had not, as of the date of the formal hearing, paid that amount. There was no evidence that Respondents were attempting to deceive, trick, or defraud the Wingates in any manner by claiming rent for the period between the time the Wingates moved in to the house and the time of the closing. By letter dated September 20, 1989, Ms. Batchelor, on behalf of Dream Home, notified the Wingates that the second mortgage balloon payment was $12,795.52 and that, according to her records, would become due on May 1, 1990. Although this statement of the due date is inconsistent with the instrument executed by the Wingates, there was no evidence that this statement was anything other than a mistake. The Wingates have defaulted on the first and the second mortgages. When Petitioner's investigator, Sharon Thayer, conducted an office inspection and escrow audit of Respondents' offices on March 13, 1990, Respondents did not have an enclosed room within which negotiations and closings of real estate transactions could be conducted and carried on with privacy. The negotiations between the buyers and sellers in the Wingate transaction were, however, conducted in private. Buyers were prompted to file a complaint against Respondents approximately one year after the closing when an unidentified bank officer told them they may have committed a fraud. Without knowledge or complicity of Respondents, Sarah F. Wingate falsified her loan application with Security First Federal Savings and Loan Association. Respondents received no commission in regard to the Wingate transaction. Respondents moved their offices and have corrected the deficiency related to the absence of an enclosed, private area.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order which finds that Respondent violated the provisions of Rule 21V-10.002, Florida Administrative Code, and consequently, Section 475.25(1)(e), Florida Statutes, which finds that Respondents violated the provisions of Section 475.25(1)(b), Florida Statutes, and which provides for the issuance of a letter of reprimand to said Respondents for such violations and the assessment of an administrative fine against Respondents in the amount of $500.00. DONE AND ENTERED this 3rd day of December, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3587 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-15 and 19-22 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 16 are rejected as being unsubstantiated by the evidence. The entry on line 501 of the copy of the closing statement introduced as Petitioner's Exhibit 8 is too faint to read. However, the copy of the closing statement included as part of Joint Exhibit 1 reflects that the entry on line 501 is the figure $4,400 and not the figure of $4,100 reflected in Petitioner's proposed finding. The proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 18 are rejected as being contrary to the greater weight of the evidence. Although the proposed findings correctly reflect Ms. Batchelor's statement to Petitioner's investigator, that statement was made several months after the transaction and before Ms. Batchelor had had the opportunity to review her files. Other evidence regarding the addendum is found to be more credible as reflected by the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-21 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 22 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Post Office Box 1900 Orlando, Florida 32802 Lawrence Maxwell Fuchs, Esquire Fuchs and Jones, P.A. 590 Royal Palm Beach Boulevard Royal Palm Beach, Florida 33411 Darlene F. Keller Division Director Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact For the purposes of these proceedings, Jager Industries, Inc. and Castle Realty Ltd. are synonymous as Petitioner. Through name changes, Castle Realty Ltd. became Jager Industries, Inc. Under the provisions of the Mortgage Brokerage Act, Chapter 494, Florida Statutes, the Office of the Comptroller, Department of Banking and Finance (Department), is charged with the responsibility and duty of administering the Mortgage Brokerage Guaranty Fund (Fund) which includes the duty to approve or deny applications for payment from the Fund, as set forth in Section 494.042, Florida Statutes. At all times material hereto, 1st Federated Realty Mortgage, Inc. (1st Federated) was licensed as a mortgage broker in this state pursuant to Chapter 494, Florida Statutes, having license number HE 7896. On or about January 8, 1981, 1st Federated filed for bankruptcy in the United States Bankruptcy Court for the Middle District of Florida, Tampa, Division. Thereafter, on or about December 16, 1981, 1st Federated was dissolved. On January 29, 1985, the Department received a letter dated January 25, 1985, by regular mail, requesting payment from the Fund on behalf of Castle Realty Ltd. Attached to the letter was a final judgment entered on April 21, 1982, in the Circuit Court for Pinellas County against 1st Federated in the principal amount of $50,000 based upon a violation of Section 494.042(2)(d), Florida Statutes, a Writ of Execution returned unsatisfied and an Affidavit of Reasonable Search. Thereafter on May 17, 1987, the Department received by certified mail a copy of the Complaint filed against 1st Federated and supporting documents including a copy of the Master Loan Commitment, Affidavit and Acceptance of Service. Pursuant to the Master Loan Commitment, Castle Realty paid $50,000 to 1st Federated as a Master Commitment Fee in exchange for a promise by 1st Federated to fund up to $4,000,000 for individual condominium loans. The individual commitments and closing of loans were subject to the lender approving the borrower's credit; however, approvals could not be unreasonable withheld. Timely notice of the institution of the action by Petitioner against 1st Federated as required by s. 494.043(5), Florida Statutes (1985), was waived by Respondent. No evidence was submitted regarding the number of claims involving 1st Federated and the amount of those claims that have been paid by Respondent from the Fund. Accordingly, no recommendation is made regarding the amount of Petitioner's claim that may be paid from the Fund pursuant to the limitations contained in s. 494.044, Florida Statutes (1985). By Notice of Intent to Deny Payment from the Mortgage Brokerage Guaranty Fund dated May 22, 1987, Respondent entered findings of fact, conclusions of law and denied Petitioner's claim. As grounds therefor, Respondent concluded that the 1985 and 1986 amendments to Chapter 494 were applicable in this case as those amendments were remedial or procedural in nature and should be given retrospective application. Thereafter, Petitioner requested formal proceedings by petition filed June 16, 1987, and this request was forwarded to the Division of Administrative Hearings by the Comptroller's letter dated July 23, 1987.
