Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner is a dentist and is also engaged in the business of leasing real property in Florida for commercial purposes. A tax auditor for the respondent, Mr. Eugene A. Soinski, notified petitioner that an audit of his books and records would be conducted to determine whether petitioner was remitting the appropriate amount of rental taxes to the respondent. At the time of the initial audit, Mr. Soinski was supplied with only bank deposit receipts and certain leases. The auditor had difficulty in determining which were mortgage payments and which were rental payments. Based upon the auditor's review of petitioner's deposit slips, lease agreements, a three-year audit prepared by petitioner and discussions with some of petitioner's tenants, as assessment for delinquent taxes was made. The initial assessment was reduced and the present dispute lies with the revised assessment dated October 2, 1978, in the amount of $5,316.35. In his amended petition for a hearing and at the hearing, petitioner alleged that no rent tax was due on three specific leases. Petitioner offered no evidence to refute the respondent's assessment on any other lease. All testimony and evidence adduced at the hearing was confined to the lease agreements between petitioner and three other businesses -- Suncoast Amusement, Product Movement Systems, Inc., and Staid, Inc. One of the three disputed items in the assessment concerned an agreement between petitioner and Suncoast Amusement, also referred to as Hot Foots. The lease agreement between Suncoast and petitioner was not made available at the hearing. According to the testimony of the petitioner, the tenant removed carpeting from the premises and installed new red carpeting in its stead. Certain other improvements were also made to the property. The petitioner testified that he received no actual benefit to the property from these improvements, and that the red carpet actually decreased the value of the property. The auditor, Mr. Soinski, remembered seeing the lease agreement and matching the rental payment amounts with the deposit receipts to arrive at the assessment. A copy of the first two pages of the "business lease" between petitioner and Product Movement Systems, Inc., was received into evidence as respondent's Exhibit 3. This agreement contains the stipulation that TWENTY-SECOND: Minimum of two room office, with air, will be built at tenant's expense and remain as part of the first years rent. According to petitioner, the tenant actually built eight to ten offices and this did not improve the real estate. It was, instead, a deterrent to future tenants, according to petitioner. A copy of the "business lease" between petitioner and Staid, Inc., was received into evidence as the respondent's Exhibit 2. The consideration for the agreement was a total rental of sixty thousand dollars, payable as follows: One thousand dollars per month in advance, plus 4 percent State tax. Two thousand dollars security deposit, receipt acknowledged. Also on the first of each month an amount equal to 1/60th of the total cost of all improvements of any kind, as approved by both parties, will be paid plus the above basic rent of $1,040. - per month. Also, the twenty-fourth stipulation and condition in said lease provides as follows . . . TWENTY-FOURTH: If during the life of this lease tenant has need of more space every effort will be made to provide some adjacent. If it is desirable to both parties a new building is necessary then such buildings will be to tenants specifications, the rent will be the total cost of such land and improvements including architect fee, cost of mortgage, paving, landscaping or any expense of any nature x 15 percent net, net. According to the petitioner, he made a loan to Staid, Inc., in the amount of $48,000.00 to enable Staid to pay for certain improvements to the property. This loan was to be repaid in installments of $800.00 per month for sixty months. It was petitioner's testimony that regardless of the wording contained in the lease agreement, the improvements were not considered a part of the rent, he derived no benefits from the improvements to the property, and part of the payment made by the tenant each month was for repayments of a loan, rather than rental on the property. It was the testimony of Mr. Soinski, the auditor, that the assessment of the three disputed leases was based on the total amount of rent paid by the tenants to the petitioner, which rent included any improvements to the property. Where lease documents were available, he utilized the amount of rent due from the face of the lease document. Where possible, he compared the lease documents with the petitioner's bank deposit slips. The revised notice of proposed assessment dated October 2, 1978, was received into evidence as the respondent's Exhibit 1. This document assesses a tax on rentals of real property in the amount of $4,215.40, a delinquent penalty in the amount of $210.79 and interest through October 2, 1978, in the amount of $890.16, for a total amount of $5,316.35.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the proposed assessment dated October 2, 1978, in the amount of $5,316.35 be upheld and that the relief requested by petitioner be denied. DONE AND ENTERED this 3rd day of January 1980 in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January 1980. COPIES FURNISHED: James W. Hickman 203 River Bend Longwood, Florida Linda Procta Assistant Attorney General Department of Legal Affairs The Capitol LL04 Tallahassee, Florida 32301 =================================================================
Findings Of Fact Respondent Shirley Holland was registered with Petitioner as a real estate salesman in January, 1976, associated with Vern Duncklee Real Estate and Insurance, Inc., Naples, Florida. He is presently registered as a real estate broker. (Stipulation) On January 5, 1976, W. H. Ragan gave the Duncklee firm a listing to sell real property consisting of approximately one and one-quarter acres located in Collier County, Florida, for a selling price of $7,500. Respondent was the listing salesman. (Testimony of Respondent, Ragan, Duncklee, Petitioner's Exhibit 6). Respondent also was a builder who operated as Holland Investment Company. It was his practice to purchase various properties, remodel existing structures on the same, and thereafter sell them at a profit. There was a two- room shed located on the Ragan property that had no inside finishing work, electricity, or septic tank. Respondent decided to take an option on the property in order to remodel it by adding a room and to place it in a habitable condition. He broached the subject to Ragan on January 6, 1976, and Ragan told him on January 7, that he was agreeable to such a contract. On January 8, Respondent and Ragan and his wife entered into a Sales Contract and Option to Buy for $7,500. The contract provided that closing would take place within twelve months and that the seller would give possession of the property to the purchaser on January 8, 1976. This was pursuant to an accompanying rental agreement dated January 8, 1976, between the parties for a period of twelve months which provided that Respondent could exercise his option at any time within the stated twelve-month period whereby all rents paid would be applied toward the down payment on the property of $1,900 which was to be made at closing of the sale. The rental agreement further provided that if Respondent did not exercise his option within the required time, any improvements made by him on the property during that period would be considered liquidated damages of the owner. Pursuant to these agreements, Respondent made a payment of $100 at the time they were executed, which represented an initial deposit on the contracts and as rent for first month of the term. The Option Agreement also gave Respondent authority to remodel the building on the property and it further reflected that Respondent was a registered real estate salesman and would be selling the property for profit. (Testimony of Respondent, Duncklee, Petitioner's Exhibits 5, 7) On January 5, 1976, Respondent showed Harold and Ruby Stacy several houses in the area that were for sale. On January 9, Respondent went by the Stacy residence to see if they were interested in any of the houses he had shown them. They were not interested in those houses and Respondent told them of property that he had recently acquired which was the Ragan property. He showed it to Mr. Stacy that night and the next day Mrs. Stacy went with him to look at the premises. During the course of their conversations, Respondent offered to rent the property to them for $100 for the period January 10 to February 1, 1976. It was his intention to rent it to them for $125 per month commencing in February on the condition that they clean and fix up the property. They also discussed the possibility of purchase at a later date. Respondent told them that he would sell to them for $13,000 if Harold Stacy would do the remodeling work on the shed with Respondent supplying the materials. Respondent quoted a possible sales price of $14,500 if he was obliged to provide both labor and materials for renovating the shed and providing for utility services. Respondent and the Stacys entered into a rental agreement on that day for the initial period of some three weeks and Ruby Stacy gave him a check dated January 10 for $100 with a notation thereon that it was a deposit on land. Respondent explained to Mrs. Stacy that he was merely renting the property at that time and added the word "rent" at the bottom of the check. (Testimony of Respondent, Petitioner's Exhibit 1, 2) Thereafter, the Stacys proceeded to clean the premises and commence installing a ceiling in the building located on the property. They also installed a septic tank. At some undisclosed date, Ragan came to the property to obtain some of his belongings and found the Stacys there. He learned that they supposedly had purchased the property from Respondent, Ragan was of the opinion that Respondent had purported to sell the property before he had obtained the option thereon and that he had therefore defrauded the Stacys. Ragan thereupon filed a complaint against Respondent with the local Board of Realtors in latter January, 1976. About the same time, Respondent had been in the process of obtaining local permits to install the septic tank and do the other work. He discovered that the Stacys had installed a septic tank without his authorization and without obtaining a permit. He thereupon, by letter of January 21, 1976, informed the Stacys that they had done work on the property without a building permit or approval of the County Health Department and therefore was refunding the rental payment of $100. He enclosed his check in that amount, dated January 21, 1976. Although Respondent later attempted to exercise his option to purchase the property, Ragan refused to fulfill the agreement and later sold the property to the Stacys himself for $7,500. (Testimony of Respondent, R. Stacy, Ragan, Petitioner's Exhibits 3,4) Mrs. Stacy testified at the hearing that she was under the impression that she and her husband had purchased the property in question on January 10, 1976, and that the $100 payment had been a deposit for such purchase. She was under the further impression that they were to make a $2,500 down payment in February to consummate the deal. She further testified that they made the improvements on the land because of their understanding that they were going to purchase it. Mrs. Stacy had never been involved in a prior purchase of real property and is unfamiliar with contract documents and terminology. It is found that Mrs. Stacy honestly believed that she and her husband had a valid agreement to purchase the property. Her testimony that she and her husband entered into the rental arrangement in January to enable them to work on the property until they could make the down payment in February is deemed credible. (Testimony of R. Stacy) Ragan and Respondent had been involved in a prior real estate transaction and Respondent testified that Ragan had not been satisfied with that transaction, but Ragan testified to the contrary. However, Ragan talked to Respondent's broker in January, 1976, about the Stacy situation, at which time Ragan stated that he had a chance to get even with Respondent for the prior transaction and that he was going to do so. (Testimony of Respondent, Ragan, Duncklee, D. Holland)
Recommendation That the Administrative complaint be dismissed. DONE and ENTERED this 8th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Ed R. Miller, Esquire Suite 212 - 1400 Gulf Shore Boulevard Naples, Florida 33940
The Issue The issues in this case are whether Respondent violated Section 475.42(1)(a), Florida Statutes (1995), by operating as a real estate broker without a license and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of real estate. Respondent is the president of Lenox Investments & Development, Inc. ("Lenox"). Lenox shares office space with Lenox Realty Corporation ("Lenox Realty"). Mr. Richard Fess is the qualifying and managing broker for Lenox Realty. Mr. Carlos Hofle is Respondent's brother, a licensed real estate agent, and an employee of Lenox Realty. Respondent is not licensed to practice real estate and is not an employee of Lenox Realty. In 1993, Respondent practiced real estate without a license by renting and negotiating the sale of a home owned by Herman and Mae Agnes Scott (the "Scotts"). Mr. Scott built the home himself approximately 20 years ago. In November, 1993, Mr. Scott became fatally ill. The Scotts were unable to make the mortgage payments on their home. They were six months in arrears in their mortgage payments. Crown Bank, the mortgagee, began foreclosure proceedings. The Scotts approached Respondent to assist them in avoiding foreclosure through a mortgage assistance program promoted by Lenox. Respondent represented verbally, in the functions he performed, and in the capacity for which he signed relevant documents, that he was a licensed real estate agent. He and the Scotts met and discussed the pending foreclosure proceeding. Respondent advised the Scotts that they should sell their house. Respondent represented that he would obtain a tenant who would purchase the house. The Scotts were in a desperate financial situation and needed cash. Respondent loaned the Scotts $2,000. The loan included a personal loan of $1,250 to the Scotts and a $750 mortgage assistance fee for Respondent. On November 10, 1993, the Scotts executed a management agreement with Lenox. Respondent negotiated and signed the management agreement. The management agreement required Respondent to advertise and show the rental property, pre-qualify the tenant, negotiate the lease, and perform repairs and maintenance. The Scotts were to pay Respondent 12 percent of the gross rent, plus one month's rent, and $750 for a mortgage assistance program to avoid foreclosure. All of the rent earned on the property went to Respondent until the $1,250 loan and $750 mortgage assistance fee were paid. On November 10, 1993, Respondent solicited and obtained an Exclusive Right of Sale Listing Contract from the Scotts on behalf of Lenox Realty. Respondent obtained a tenant who Respondent represented would purchase the Scotts' house. Respondent collected $1,400 from the tenant. None of the rent was paid to avoid or work out the foreclosure. The mortgagee foreclosed on the Scotts' house. They lost their home, their equity, and their credit. Respondent never worked for Lenox Realty. Lenox Realty never authorized Respondent to obtain listing agreements or management agreements on behalf of Lenox Realty. Neither Lenox Realty nor Mr. Fess agreed to list the Scotts' home for sale. Neither authorized Respondent to do so. Mr. Fess never signed the listing agreement with the Scotts. The Scotts dealt only with Respondent. They did not know that Respondent was not licensed. The Scotts never dealt with anyone who was a licensed real estate agent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 475.42(1)(a) and imposing an administrative penalty of $5,000. RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997. COPIES FURNISHED: Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Edward A. Kerben, Esquire 725 North Magnolia Avenue Orlando, Florida 32803
The Issue Whether Assertive Mortgage LLC’s (“Assertive Mortgage”) application for a mortgage broker license should be granted.1 1 Unless stated otherwise, all statutory references shall be to the 2020 version of the Florida Statutes. See generally McClosky v. Dep’t of Fin. Serv., 115 So. 3d 441 (Fla. 5th DCA
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: OFR is the state agency responsible for regulating mortgage brokering, mortgage lending, and loan origination.8 Toshia Glover became a Florida-licensed mortgage broker in 1999, and she became licensed in Florida and Georgia as a mortgage loan originator in 2000. At some point after 2003, she obtained a Florida real estate broker’s license. In 2006, Ms. Glover became a Georgia-licensed mortgage broker. Ms. Glover operated a mortgage broker company called A+ Loans from 2005 until September of 2008. The economic downturn that occurred in 2008 decimated her real estate and loan origination businesses and forced her to discontinue operations. 7 Pages 9 and 10 of the Transcript erroneously attribute comments by Petitioner’s counsel to counsel for Respondent. 8 Prior to 2010, OFR issued mortgage broker licenses to individuals and businesses. Since 2010, OFR has issued loan originator licenses to individuals and mortgage broker licenses to businesses. Therefore, the individual mortgage broker license is the historical equivalent of the current loan originator license. Section 494.001(18), Florida Statutes, defines a “loan originator” as “an individual who, directly or indirectly, solicits or offers to solicit a mortgage loan, accepts or offers to accept an application for a mortgage loan, negotiates or offers to negotiate the terms or conditions of a new or existing mortgage loan on behalf of a borrower or lender, or negotiates or offers to negotiate the sale of an existing mortgage loan to a noninstitutional investor for compensation or gain.” Ms. Glover moved to Georgia from Florida during the fourth quarter of 2008, and sustained herself by doing odd jobs. Ms. Parrish estimates that she earned less than $10,000 in 2009. In February of 2009, OFR unsuccessfully attempted to personally serve an Administrative Complaint on Toshia Glover alleging that A+ Loans and Ms. Glover, as the principal broker of A+ Loans, received improper compensation of $1,530 and $600. Those allegations amounted to violations of sections 494.0038(1)(a) and (1)(b)1. Florida Statutes (2005 and 2006), and rule 69V-40.008(1). In March and April of 2009, OFR published notice of the Administrative Complaint in the Sun-Sentinel daily newspaper. After Ms. Glover and A+ Loans did not respond to the Administrative Complaint, OFR issued a “Default Final Order and Notice of Rights” (“the Default Final Order”) on April 22, 2009, immediately revoking Ms. Glover’s mortgage broker license and imposing a $7,000 administrative fine for which Ms. Glover and A+ Loans were jointly and severally liable. Ms. Glover and A+ Loans were also required to refund a total of $2,130 to one or more borrowers. Ms. Glover married her current husband on December 12, 2012, and has not used her maiden name since. She will hereinafter be referred to as Ms. Parrish. Ms. Parrish owns Assertive Mortgage. In September of 2020, Ms. Parrish, on behalf of Assertive Mortgage, filed an application with OFR for licensure as a mortgage broker. The application identified Ms. Parrish as Assertive Mortgage’s president and qualifying individual. Ms. Parrish is the owner and president of Assertive Mortgage. OFR determined that Assertive Mortgage’s application could not be granted because the Default Final Order had revoked Ms. Parrish’s mortgage broker license.
Conclusions For Petitioner: H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. Suite 206 1882 Capital Circle Northeast Tallahassee, Florida 32308 For Respondent: Joaquin Alvarez, Esquire Office of Financial Regulation Fletcher Building 200 East Gaines Street Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Office of Financial Regulation issue a final order denying Assertive Mortgage, LLC’s, application for a mortgage broker license. DONE AND ENTERED this 3rd day of December, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2021. H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. Suite 206 1882 Capital Circle Northeast Tallahassee, Florida 32308 Russell C. Weigel, Commissioner Office of Financial Regulation 200 East Gaines Street Tallahassee, Florida 32399-0350 Joaquin Alvarez, Esquire Office of Financial Regulation Fletcher Building 200 East Gaines Street Tallahassee, Florida 32399 Anthony Cammarata, General Counsel Office of Financial Regulation The Fletcher Building, Suite 118 200 East Gaines Street Tallahassee, Florida 32399-0370
The Issue At issue in this proceeding is the following clause on Form DBF-F-24, which form is incorporated by reference in Rule 3D-40.09(2), Florida Administrative Code: If the above commitment or a commitment in an amount and/or upon terms acceptable to the undersigned is obtained and said mortgage loan is not closed because (I) (We) have not fulfilled our part of this agreement, (I)(We) agree to pay $ the application deposit being a part, for obtaining said commitment. The Association contends that this type of charge is not authorized in Chapter 494, Florida Statutes, and is prohibited by other provisions of law. The validity of the above-cited clause is the sole issue here.
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 At all times pertinent to these proceedings, Respondent, Private Money Mortgage Company (PMMC), was a mortgage brokerage business in the State of Florida holding License Number HB592732699 that had been issued by Petitioner. At all times pertinent to these proceedings, Frank Donahue was a licensed mortgage broker in the State of Florida holding License Number HA267474770 that had been issued by Petitioner. The Department of Banking and Finance, the Petitioner in these proceedings, is the agency of the State of Florida charged with the responsibility of enforcing the provisions of Chapter 494, Florida Statutes. In 1985, Mr. and Mrs. A. Charles Cinelli bought a house in Palm Beach County, Florida, and moved from upstate New York to Palm Beach County, Florida. Respondent, Frank Donahue, assisted Mr. and Mrs. Cinelli in obtaining financing for the home the Cinellis purchased in Palm Beach, County. In connection with this 1985 transaction, Mr. Donahue forwarded to the Cinellis an "Exclusive Broker Agreement", which they executed and returned to him. Because this 1985 transaction involved a purchase, Mr. Donahue ordered an appraisal for this property and charged its cost as a part of the Cinelli's closing costs. Subsequent to that transaction, Mr. Donahue and his wife, Brenda, saw Mr. and Mrs. Cinelli at occasional social events. Franklin T. Smith is a certified public accountant who performed professional services for Mr. and Mrs. Cinelli and for Mr. and Mrs. Donahue. Mr. Smith referred the Cinellis to Mr. Donahue in 1985 and advised the Cinellis during the transaction that is the subject of this proceeding. Prior to December 2, 1988, Mr. Cinelli contacted several mortgage brokers in the Palm Beach County area to discuss the possibility of obtaining a mortgage on certain real property located in upstate New York. Mr. Cinelli contacted Mr. Donahue by telephone and discussed with him his desire to raise capital to begin a business in Florida. Mr. Cinelli estimated that he would require approximately $1,000,000 to start this business. Mr. Cinelli told Mr. Donahue that he and Mrs. Cinelli owned certain commercial real property in upstate New York and that State Farm Insurance Company held an option to purchase this property for the sum of $1,450,000. Mr. Cinelli did not want to wait to learn whether State Farm intended to exercise this option to purchase and he discussed with Mr. Donahue the possibility of obtaining the desired capital by securing a mortgage on this property. Mr. Donahue advised Mr. Cinelli that he could expect to secure a mortgage for approximately $700,000 (which was approximately 50% of the amount of the option contract) and that he would need a current appraisal. Mr. Donahue also informed Mr. Cinelli that he would require the sum of $2,500 as a non-refundable deposit to begin seeking such a commitment. On or about December 2, 1988, Mr. Cinelli provided Mr. Donahue with a copy of the option agreement with State Farm and with a copy of the agreement dated September 21, 1988, which extended the time within which State Farm could exercise its option for an additional six months. Mr. Cinelli reiterated to Mr. Donahue that the option price was for $1,450,000 and that he wanted to mortgage the property for $1,000,000. Mr. Cinelli also provided Mr. Donahue with the name, address, and telephone number of Mr. Wayne Lupe, who was represented by Mr. Cinelli to be his MAI appraiser in Schenectady, New York. On December 15, 1988, Mr. Donahue sent to Mr. Cinelli a letter which attached an "Exclusive Broker Agreement" that had been executed by Mr. Donahue on December 15, 1988. This was the same "Exclusive Broker Agreement" form that Mr. Donahue had used for the 1985 Cinelli transaction. The body of the letter provided as follows: Enclosed please find a copy of my exclusive brokers agreement detailing the probable terms of the loan which you are seeking. This agreement is the same agreement which you signed when you purchased your current resi- dence. The agreement calls for both you & Joan to sign and return along with a nonrefundable deposit in the amount of $2500.00 to Private Money Mortgage Corp. The above noted deposit shall be credited towards your closing costs at the time of closing, if a commitment is offered. I have spoken to several of my investors about your concerns and I am awaiting confirmation of their substantial interests prior to ordering the appraisal. I will contact you as soon as I have received the return of this agreement along with your deposit in order to fill you in on our efforts to secure you the most competitive loan on your desired terms. The Exclusive Broker Agreement reflected that the amount of the mortgage would be $700,000 and disclosed that the total estimated costs that would be incurred in securing the mortgage was $78,346, which included a broker's fee of $35,000 and an estimated appraisal fee of $3,500. The Exclusive Broker Agreement, signed by Mr. Donahue on December 15, 1988, contained the following provision: DEPOSIT: In consideration of the sum of $2,500, receipt of which is hereby acknowledged, and in compliance with Chapter 494, Florida Statutes, Broker accepts this application and agrees to exert his/her best effort to obtain a commitment for loan in accordance with the terms and conditions set forth herein. This deposit shall be credited toward closing costs at the time of closing the permanent loan or commitment, less Broker's expenses. Among the "Standards" which were incorporated as terms and conditions of the Exclusive Broker Agreement was the following: Deposit. Client simultaneously with execution of this agreement has deposited with broker the amounts stated in this agreement in order to secure the obligations owed by client to broker in the event of default of client as provided in the agreement and to reimburse broker of any and all expenses, including telephone charges, lodging, and administrative fees for credit checks and processing appraisals and the like, including upon any cancellation by client, reimbursement for broker's time expended incurred by broker, whether or not a loan commitment is obtained by broker. Mr. Cinelli was concerned that he would be incurring substantial fees and costs if Mr. Donahue obtained a commitment and Mr. Cinelli decided not to accept it. Mr. Smith advised Mr. Cinelli that the estimated expenses were not abnormally high, but he suggested that his liability should be limited. In response to those concerns, Mr. Donahue prepared and delivered between December 15, 1988, and the end of the year an addendum to the Exclusive Broker Agreement that would have limited Mr. Cinelli's liability to the sum of $7,500. That addendum provided, in pertinent part, as follows: It is hereby understood and agreed by the parties that in the event a loan commitment is offered to the applicants & they decide to refuse this commitment, the applicants liability will be limited to the sum of Five Thousand Dollars plus the original deposit of $2,500.00 for a total amount of $7,500.00. It is further understood that said commitment must bear approximately the same terms and conditions as the attached agreement. Mr. and Mrs. Cinelli gave Mr. Smith the sum of $2,500 in cash to deliver to Mr. Donahue, but there is conflicting testimony as to when this money was delivered to Mr. Smith for delivery to Mr. Donahue. Mr. Cinelli testified that the money was delivered before the Exclusive Broker Agreement dated December 15, 1988, was prepared. Mr. Donahue testified that the money was delivered after both the Exclusive Broker Agreement and the addendum thereto had been delivered to Mr. Cinelli. Mr. Donahue also testified that the statement contained in the Exclusive Broker Agreement that he signed on December 15, 1988, acknowledging his receipt of the $2,500 deposit was false. He did not explain why the addendum referred to the sum of $2,500 as "the original deposit". Mr. Smith did not recall when he delivered this money to Mr. Donahue, but he did recall having delivered the cash the same day he received it from the Cinellis. While his testimony is that he received the $2,500 during his initial meeting with Mr. and Mrs. Cinelli (which would be before Mr. Cinelli received the Exclusive Broker Agreement) this testimony lacks credibility because of Mr. Smith's lack of certainty as to dates. In addition, this testimony conflicts with the letter Mr. Smith wrote to Mr. Donahue at Mr. Donahue's request on August 28, 1989, which clearly indicates that the $2,500 was not paid until after the addendum to the Exclusive Broker Agreement had been prepared. This conflict is resolved by finding that the greater weight of the evidence establishes that the sum of $2,500 was delivered by Mr. Smith to Mr. Donahue after Mr. Cinelli had received both the Exclusive Broker Agreement and the addendum thereto. Mr. Donahue did not provide the Cinellis with any type of written agreement, other than his letter of December 15, 1998, the Exclusive Broker Agreement, and the addendum when he received the cash from Mr. Smith. There was no written receipt for these funds, nor was there any written memorandum of understanding between Mr. Donahue and the Cinellis as to whether payment for the appraisal that Mr. Donahue and Mr. Cinelli had discussed would be made from the $2,500. Mr. Cinelli was of the belief that $2,000 of the $2,500 deposit would be earmarked for the payment of the appraisal. Mr. Donahue was of the belief that the $2,500 was a non-refundable retainer and he treated that sum as an earned fee. There was no meeting of the minds between Mr. Cinelli and Mr. Donahue as to the nature of the $2,500 deposit, other than it was non-refundable. Specifically, there was no agreement as to what costs, if any, would be paid from that deposit. Mr. Donahue's normal business practice in transactions involving a refinance of property is different than his practice in transactions involving a purchase of property. In purchase transactions (such as the 1985 Cinelli transaction), Mr. Donahue arranges for the appraisals and treats the costs of the appraisal as an expense to be paid by the purchaser at closing. In refinance transactions (such as the 1988 Cinelli transaction), it is his practice to require his customer to deal directly with the appraiser in ordering and paying the costs of the appraisal. Respondents failed to establish that in the subject transaction, Mr. Donahue made it clear that Mr. Cinelli would be responsible for ordering and paying the cost of the appraisal. Mr. Cinelli believed that $2,000 of the $2,500 he later gave Mr. Donahue would be earmarked for the payment of the appraisal. Neither Mr. Donahue's letter of December 15, 1998, the Exclusive Broker Agreement, nor the addendum clearly resolved the dispute. There was a dispute between Mr. Donahue and Mr. Cinelli as to who ordered the appraisal. Mr. Cinelli denied that he ordered the appraisal and that his calls to his appraiser, Mr. Lupe, was only to advise him of Mr. Donahue's forthcoming call. Mr. Donahue denied that he ordered the appraisal and that his contacts with Mr. Lupe were after Mr. Cinelli had ordered the appraisal. Mr. Donahue contends that his contacts with the appraiser were merely to give the appraiser instructions as to the information that should be reflected by the appraisal. This dispute is resolved by finding that Mr. Cinelli ordered the appraisal through Mr. Lupe and that Mr. Donahue advised Mr. Lupe as to the information that should be reflected by the appraisal. It was determined from conversations between Mr. Donahue and Mr. Lupe that Mr. Lupe was not qualified to perform the appraisal and that Mr. Lupe would engage Albert L. Friedman, MAI and William J. McEvoy of Capitol Real Estate and Appraisal Company of Schenectady, New York, on Mr. Cinelli's behalf to perform the work. Messrs. Friedman and McEvoy prepared the appraisal and certified the same to Mr. Cinelli on March 13, 1989. The appraised value of the property was $2,100,000. As of the date of the formal hearing, the appraiser's bill of $2,000 had not been paid. Capitol Real Estate and Appraisal Company had billed both Mr. Donahue and Mr. Cinelli and an attorney representing Capitol Real Estate and Appraisal Company had written Mr. Cinelli a demand letter. It was the dispute over the payment of the appraiser's fee that prompted the complaint the Cinellis filed against Respondents. The Cinellis did not execute the Exclusive Broker Agreement and the addendum because they wanted to wait on the appraisal to see if the appraised value would permit them to borrow more than $700,000 and because they were not satisfied with the amount of the projected costs of consummating the transaction. Mr. Cinelli misled Mr. Donahue as to his intentions to execute these agreements. Mr. Donahue made several requests to the Cinellis that they execute the Exclusive Broker Agreement and addendum and return them to him. Despite the absence of an executed brokerage agreement, Mr. Donahue exerted considerable effort to seek a commitment consistent with the Exclusive Broker's Agreement and succeeded in securing such a commitment in April 1989. No part of the $2,500 Mr. Donahue received from Mr. Smith on behalf of the Cinellis was placed in escrow by Mr. Donahue. Respondents have made no accounting of the $2,500 and have paid no part of the appraisal bill. Mr. Donahue claims the deposit as a non-refundable earned fee, despite the absence of a written agreement to that effect. The Cinellis sold the subject property to State Farm in June 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by Petitioner which finds: that Respondents violated the provisions of Rule 3D-40.006(5), Florida Administrative Code, by accepting the $2,500 deposit from the Cinellis without a written agreement as to the disposition of those funds; that Respondents violated the provisions of Section 494.055(1)(e), Florida Statutes, and Rule 3D-40.006(6)(a), Florida Administrative Code, by failing to place said deposit in escrow; and that Respondents violated the provisions of by Section 494.055(1)(f), Florida Statutes, by failing to account for said deposit. It is further recommended that an administrative fine be levied against Respondents in the total amount of $1,000.00 for said violations. It is further recommended that the final order place the licenses of Respondents on probation for a period of one year with three special conditions of probation. The first special condition of probation would require Respondents to pay Capitol Real Estate and Appraisal Company the sum of $2,000 within sixty days of the Final Order. The second special condition of probation would terminate Respondents' probation upon timely compliance with the first special condition of probation. The third special condition of probation would prohibit Respondents from conducting any business as mortgage brokers within the State of Florida for a period of six months should Respondents fail to timely comply with the first condition of probation. RECOMMENDED in Tallahassee, Leon County, Florida, this 9th day of January, 1991. CLAUDE B. ARRINGTON 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 9th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4708 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, 3-10, and 13 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 2 and 11 are adopted in part by the Recommended Order, and are rejected in part as being contrary to the findings made. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, and are rejected in part as being argument. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-3 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4-6, 14, and 17 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are adopted in part by the Recommended Order. The characterization of the Cinellis having a "long standing relationship" with Mr. Donahue is rejected as being ambiguous and unnecessary to the conclusions reached. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 9-11 are adopted in part by the Recommended Order, but are rejected to the extent that they are subordinate to the findings made. The proposed findings of fact in paragraphs 12 and 13 are rejected as being recitation of testimony or as being subordinate to the findings made. The proposed findings of fact in paragraph 15 are rejected as being subordinate to the findings made or as being contrary to the findings made or to the conclusions reached. The proposed findings of fact in paragraph 16 are adopted in part by the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached. COPIES FURNISHED: Deborah Guller, Esquire Office of the Comptroller 111 Georgia Avenue, Suite 211 West Palm Beach, Florida 33401-5293 Marie A. Mattox, Esquire Douglass, Cooper, Coppins & Powell Post Office Box 1674 Tallahassee, Florida 32302-1674 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 William G. Reeves General Counsel The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact After Respondent Kout was unsuccessful in his judicial review of the Board's Order suspending his real estate salesman's license, the Board confirmed his sixty-day suspension commencing November 20, 1978. The license that was suspended had expired on September 30, 1978, and had not been renewed. During November, 1978, Kout submitted an incomplete application which was returned, corrected and resubmitted; the Hoard received this on January 10, 1978, and subsequently issued a license with an effective date of November 20, 1978. The Board's computer, records notwithstanding, did not know of the suspension until March, 1978, and did not know of the issuance of the license until August, 1978, when the Keyes Company forwarded Kout's affidavit that his Registration Certificate had been stolen. Keyes was informed that the license was suspended as no renewal had been received. Application was made and Kout's license reissued. Until his license was stolen, along with his wallet, Kout carried the license issued in January, 1979, and assumed he had been reinstated on January 19, 1979, at the end of the sixty-day suspension. Conclusions The Board contends that under the above facts, Kout operated without a valid current real estate license between November 20, 1978, and August 21, 1979, and specifically during June, 1979, regarding the Bentkowski sale, discussed under Count I, as required by Section 474.42(1)(a), Florida Statutes (1977 and 1979)(misdemeanor), and therefore contrary to Sections 457.25(1)(a), Florida Statutes (1977), and 474.25(1)(b) Florida Statutes (1979)(revocation/suspension for violating the real estate law). There is no doubt that confusion existed between the Board's records and computer as to what the current status of Kout's license was during the period in question. However, absent rebutting evidence by the Board of the testimony of Kout, the allegations of the Board are not supported by the evidence.
Recommendation It is , therefore, RECOMMENDED: That Count I and Count II of the Petition of the Board of Real Estate be dismissed with prejudice. DONE and ORDERED this 28th day of August, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed this 28th day of August with the Clerk of the Division of Administrative Hearings. COPIES FURNISHED: Ms. Nancy Kelley Wittenberg Secretary, Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mr. C.B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Staff Attorney Department of Professional Regulation Board of Real Estate 2009 Apalachee Parkway Tallahassee, Florida 32301 David M. Rogerio, Esquire Blackwell, Walker, Gray, Powers, Flick and Hoehl 2400 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131
The Issue Whether or not Respondent's real estate license should be disciplined, because, as alleged, Respondent is guilty of fraud, misrepresentation, concealment, false promises and pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction; failed to place a trust deposit with her employing broker and operated as a broker while licensed as a salesman in violation of Subsections 475.25(1)(b), and (k), Florida Statutes.
Findings Of Fact During times material hereto, Respondent, Barbara B. Wise, was a licensed real estate salesman in Florida, having been issued license number 0484022. The last license issued Respondent was as a salesman, c/o Grover Goheen Realty, Inc., at 414 Twelfth Avenue, North, St. Petersburg, Florida. During October 1988, Respondent, while licensed and operating as a salesman in the employ of her broker, Goheen Realty, Inc., solicited and obtained a lease listing agreement from Michael Riggins. As a result of that listing, Marsha Tenny contacted Respondent and requested assistance in obtaining a seasonal lease for the period January 1989 through April 30, 1989. Ms. Tenny made Respondent aware of her needs respecting a lease property to include wheelchair access as her husband was wheelchair bound. As a result of visiting approximately three available units, Respondent secured a seasonal lease from Michael Riggins for Marsha Tenny. The lease agreement for the Tenny's was the first rental listing that Respondent had obtained and it suffices to say that she was a novice in the area of securing lease agreements. Likewise, her employing broker did very little volume in rentals as her broker was of the opinion that the net commissions were not sufficient to defray the time and effort involved for several reasons including the limited availability of rental properties. As a result, her broker was unable to provide guidance. Pursuant to the aforementioned lease agreement, Respondent named several options by which Marsha Tenny could secure the apartment to include sending a personal check to her and after negotiating it she would in turn pay the rental fees directly to the landlord. Other options included Ms. Tenny sending separate checks to the landlord for the apartment and a check for the commission fees to her employing broker or she could deal directly with the landlord and remit a separate check to her employing broker for fees. Ms. Tenny elected to send a money order in the amount of $1,500.00 to Respondent. After she negotiated the check she received from Marsha Tenny, Respondent retained her commissions and did not pay her broker the pro-rata share that the broker was entitled to. Respondent did not inform her broker of the Riggins/Tenny lease agreement when she received the deposit from the Tennys on or about October 23, 1988. Respondent negotiated the Tenny's deposit check by depositing same into her personal account and drew a check in the amount of $1,100.00 as the rental deposit and remitted it to Mr. Riggins on October 2.1, 1988. Respondent retained the $400.00 balance as her fee. Respondent tendered her employing broker its portion of the commission fees ($174.00) on February 24, 1989. During early February 1989, the Tennys expressed dissatisfaction with the apartment and demanded a refund from Respondent. Respondent wrote the Tennys a letter of apology and submitted a money order to Marsha Tenny in the amount of $50.00 on February 3, 1989. (Petitioner's Exhibit 4.) As stated, Respondent was inexperienced with the rental business in Pinellas County. She was at the time undergoing other family problems, including tending to a sister in Orange County, Florida, who was very ill. At the time, Respondent commuted from Pinellas County to Orange County several times per week to visit with and assist her sister. Additionally, Respondent's office was being relocated and the staff was having to relay messages to her through her husband and other salesman employed with her broker. In addition to sending the Tennys a money order in the amount of $50.00, Respondent agreed to repay the Tennys the entire remaining balance of the finders fee that she received from the Riggins/Tenny leasing agreement as soon as she was financially able to do so. (Petitioner's Exhibit 4.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent be issued a written reprimand and placed on probation for a period of one (1) year. During the probationary period, Respondent shall enroll in an approved post-licensure course and shall satisfactorily complete the same prior to termination of probation. DONE and ENTERED this 4th day of April, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 4th day of April, 1990. Steven W. Johnson, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Barbara B. Wise 1059 42nd Avenue, N.E. St. Petersburg, Florida 33703 Darlene F. Keller, Executive Director Kenneth E. Easley, Esq. Division of Real Estate Department of Prof. Reg. 400 West Robinson Street 1940 North Monroe Street Post Office Box 1900 Suite 60 Orlando, Florida 32802 Tallahassee, FL 32399
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
