Findings Of Fact Respondent, Ann K. Croasdell, was a registered real estate broker at all times material hereto. She has been issued License #0141344. On June 28, 1978, William Young, the owner of apartment #47, 848 Park Lake Circle, Maitland, Florida, conveyed said apartment to Susan B. Bickley. A warranty deed as to this transaction was recorded on June 30, 1978. On April 24, 1979, Bickley conveyed apartment #47, 848 Park Lake Circle, Maitland, Florida, to Respondent. This deed was recorded on April 25, 1979. Thereafter, on April 26, 1979, Respondent conveyed apartment #47, 848 Park Lake Circle, Maitland, Florida, to William Young. The warranty deed was signed by Respondent in Young's presence and Respondent delivered the warranty deed to Young by physically handing it to him after the document had been notarized. The warranty deed from Respondent to Young was not recorded until September 3, 1980. Over a year after she conveyed to Young, Respondent went to Levie Florida Investments, licensed mortgage brokers, and made application for a second mortgage loan on the subject property. Respondent dealt with James Levie, a mortgage banker with Levie Florida Investments. Levie was present when the application was made and saw the Respondent sign the document. His signature also appears on Respondent's mortgage loan application dated August 11, 1980. On August 20, 1980, the closing for the second mortgage on apartment #47, 848 Park Lake Circle, Maitland, Florida, was held. On that date, Respondent executed a mortgage deed and mortgage note from herself to Levie Florida Investments, a certificate of confirmation specifically stating that Respondent was the owner, a notice to first mortgage holder, and a loan closing statement. At that closing, Levie Florida Investments disbursed, to Respondent, its check #5937, in the amount of $6,000.00. The check was signed by James Levie and was delivered to Respondent at the time of closing. Subsequently, the check was negotiated by Respondent and returned to Levie Mortgage marked paid. Respondent never advised Levie Mortgage Company or any of it agents, including James Levie, up to and including the date of closing, that she had executed a deed to the property to any other party. She never indicated to anyone at Levie Mortgage Company or any of its agents that anyone else had any other interest in the property; nor did she ever indicate that she was acting as a trustee, agent or in any other fiduciary capacity on behalf of another person in seeking this loan. Further, Levie was never made aware by anyone, while the transaction was pending, that, in fact, a deed had been executed to another individual. It was not until after the loan had been closed and the mortgage had been placed in default that James Levie ultimately found out that a deed had been executed by William Young. This was discovered when he requested a title search be made by Giles, Hedrick & Robinson prior to the institution of foreclosure action. The evidence was inconclusive as to the reason Respondent failed to inform Levie Mortgage Company as to the ownership status of the property on which she sought and obtained the second mortgage loan. Respondent claims she was serving in a trust relationship with William T. Young at the time. Young denies this relationship existed or that he had knowledge of the second mortgage transaction.
Recommendation In consideration of the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's real estate broker's license for a period of three years. 2/ DONE and ORDERED this 21st day of March, 1983, in Tallahassee, Florida. R.T. CARPENTER 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 21st day of March, 1983
Findings Of Fact Introduction At all times relevant hereto, Fidelity Standard Mortgage Company (Fidelity Standard) and First Fidelity Financial Services, Inc. (First Fidelity) were mortgage brokers licensed by respondent, Department of Banking and Finance, Division of Finance (Division). In or around early 1983, Fidelity Standard and First Fidelity filed for bankruptcy under Chapter 11, Title 11, United States Code. By virtue of this action, numerous investors lost substantial amounts of money invested with the two brokers. In 1977 the legislature established in chapter 494 a mortgage brokerage guaranty fund from which payment is made to persons "adjudged by a court of competent jurisdiction to have suffered monetary damage as a result of any (unlawful) acts by a mortgage broker... who was licensed under, this chapter at the time the act was committed." Certain conditions must be met in order to establish eligibility for payment from the fund, and payments for claims are limited in the aggregate to $50,000 per mortgage broker, regardless of the number of claimants. 1/ Among other things, section 494.043 requires that a claimant must have (a) received a final judgment in a court of competent jurisdiction against the broker, (b) caused to be issued a writ of execution upon the judgment and the return indicates insufficient assets to satisfy the judgment, (c) made a reasonable search to discover assets of the broker, and has found none, (d) applied any amounts recovered from broker to the damages awarded by the court, and (e) given notice to the Division by certified mail at the time the action was instituted. Where as here, the broker has filed for bankruptcy, steps (b) and (c) need not be taken by the claimant, except to file a claim in the bankruptcy proceeding. There is also a two year period in which investors may perfect their claims. These persons receive first priority to payment from the fund. In the case of both Fidelity Standard and First Fidelity, this period expired on June 18, 1986. Thus, in order to share in the first distribution of moneys from the fund, a claimant had to satisfy the above criteria by that date. In addition to these criteria, a claimant must assign to the Division any interest in the judgment received once all criteria in section 494.043 have been met. The statute imposing this requirement (s. 494.044) provides that this must be done after the claimant has received payment from the fund. In its proposed final order concerning Fidelity Standard entered on August 7, 1986, the Division concluded that the following claimants should receive payment from the fund in the amounts specified below: Claimant Claim Allowed David Swid $ 2,321.00 William & Olivia Petruzel 2,321.00 Vera G. Marino 2,321.00 Benjamin Rosenberg 2,321.00 Lee Rosenberg 2,321.00 Shasha Enterprises 2,321.00 Eli Krause 1,995.00 Eugene Brooks, M.D., P.C. 2,321.00 Eugene Brooks 2,321.00 Steven Jankovich 2,100.50 Stacy Sher 2,100.50 Frederick Low 2,321.00 Patricia Worthley 2,321,00 Alfred Vanderlaan 2,321.00 Ben Sakow 2,048.00 Thomas Shisler 1,229.00 David Irving 2,321.00 Betty Burwell 1,662.00 Alisa Kreimer 2,321.00 Samuel Rudnick 2,321.00 Bonnie & Howard Lenkowitz 1,204.00 Larry & Sally Lenkowitz 525.00 Stuart & Barbara Schrager 2,321.00 Helen & Eugene Loos 2,321.00 Total Payments $50,000.00 In a second order entered the same day involving First Fidelity, the Division proposed that the following claimants receive payment from the fund as indicated below: Claimant Fund Award Swid $ 2,620.00 Morton 2,620.00 Ghane 2,620.00 Petruzel 2,620.00 Marino 2,620.00 B. Rosenberg 2,620.00 L. Rosenberg 2,620.00 Shasha Enterprises 2,620.00 Krause 2,254.00 Brooks, M.D., P.C. 2,620.00 Brooks 2,620.00 Jankovich 2,372.00 Sher 2,372.00 Low 2,620.00 Worthley 2,620.00 Vanderlaan 2,620.00 Sakow 2,313.00 Shisler 1,389.00 Irving 2,620.00 Loos 2,620.00 Total Payments $50,000.00 After the entry of the proposed final order in Case No. 86-3575, petitioners, David Swid, Vera G. Marino et al., Samuel Rudnick et al., and William and Olivia Petruzel, who are named as recipients from the fund, requested a hearing to either contest or support the proposed payout from the fund. In addition, petitioners, Merele Dunne, Ida Orlick and Ilene Kirshner, whose claims were denied, challenged the proposed action. In Case No. 86-3576 involving First Fidelity, petitioners, William and Olivia Petruzel, David Swid, Esmail Ghane and Vera G. Marino et al., who are named as recipients of the fund, have requested a formal hearing to either challenge or support the agency action. Petitioners, Harry and Yetta Neiderman, Harold E. and Eva L. Roys and Harold S. Johnson, whose claims to participate in the initial distribution of the fund were denied, also requested a hearing to contest the action. The Claimants David Swid -- Swid satisfied all statutory criteria in section 494.043 for perfecting his claim against both Fidelity Standard and First Fidelity by June 18, 1986. His partial assignment to the Division of the judgment against the brokers was also filed on June 18, 1986, but was not furnished to the Division until July 9, 1986. Even so, Swid has satisfied all criteria, and is eligible to participate in the initial payout from the fund. Marino et al. -- This group of claimants includes fifteen investors. 2/ Marino et al. received two identical judgments against First Fidelity and Fidelity Standard and otherwise satisfied all statutory criteria by June 18, 1986. Because the group is not entitled to a double recovery, the amount awarded by the court has been divided in half. An assignment of the judgments was filed with the Division on June 12, 1986, but did not reflect the page and book number where the judgments were recorded. However, the judgments were filed with the United States Bankruptcy Court for the Southern District of Florida, and records of that court are not kept by book and page number. Therefore, the assignment was in proper form, and all statutory criteria have been met. William and Olivia Petruzel -- The Petruzels obtained final judgments against First Fidelity and Fidelity Standard on April 11, 1985, in the United States Bankruptcy Court. Partial assignments of the judgments dated April 4, 1986, in favor of the Division were filed with the Division in April 1986. Therefore, all pertinent criteria have been met, and the Petruzels are eligible to share in the initial payout from the fund. Harold E. and Eva L. Roys and Harold S. Johnson -- These parties are claimants against First Fidelity. There is no evidence that they perfected their claims prior to June 18, 1986. Therefore, their claim to participate in the first distribution of moneys from the fund should be denied. Rudnick et al. -- This group of claimants includes six investors in Fidelity Standard. 3/ They obtained a final judgment against Fidelity Standard on June 10, 1986, in Broward County circuit court. Assignments of this judgment to the Division were executed in August 1986, and later filed with the Division. Therefore, Rudnick et al. have qualified for participation. Ida Orlick and Merele Dunne -- These two claimants were investors in Fidelity Standard and First Fidelity. They did not obtain a final judgment against those brokers until June 25, 1986, or after the two-year period to perfect claims had expired. Therefore, they are not entitled to participate in the first distribution of moneys from the fund. 4/ Harry and Yetta Neiderman -- These claimants were investors in First Fidelity. They obtained a final judgment in bankruptcy court against the broker prior to June 18, 1986. The Division proposed to deny the claim on the ground no documentation was submitted to prove that a claim had been filed with the bankruptcy court. At final hearing, the Neidermans submitted a proof of claim which reflected such a claim was previously filed with the court on July 15, 1982. Therefore, all statutory criteria have been met. Irene Morton -- Morton was an investor in First Fidelity who, like the others, lost her investment by virtue of illegal acts of that broker. She has perfected her claim in a timely manner and is entitled to participate in the first distribution of moneys from the fund. Esmail Ghane -- This investor lost approximately $30,000 due to the illicit acts of First Fidelity. He has subsequently obtained a judgment against the broker and has satisfied in a timely manner all other statutory criteria. Therefore, he has perfected his claim and is eligible for payment from the fund. At the same time, it is noted that Ghane's cause of action against the broker arose prior to October 1, 1985, and that he must share in the lower aggregate award ($50,000) that applies to claims arising before that date. Computation of Payments In addition to obtaining judgments for their lost principal, virtually all of the claimants were awarded either prejudgment or post-judgment interest, or both, by the courts adjudicating their claims. Further, some of the claimants have previously received payments from the fund for illegal acts occurring on the part of Franklin Capital Corporation, an affiliated corporation of First Fidelity and Fidelity Standard. By stipulation of counsel, the following amounts are the correct amounts due the claimants for losses arising from illicit acts by Fidelity Standard and First Fidelity assuming their claims are both timely and valid. The amounts are computed after deducting prior payments and by using only the principal amount awarded by the courts, and by including principal and pre- judgment interest. Fidelity Standard (without interest) Fund Claimant Award Swid $ 3,021.00 Petruzel 3,021.00 Marino 3,021.00 B. Rosenberg 3,021.00 L. Rosenberg 3,021.00 Shasha Enterprises 3,021.00 Krause 1,435.00 Brooks, M.D., P.C. 2,870.00 Brooks 1,888.00 Jankovich 1,511.00 Sher 1,511.00 Low 1,813.00 Worthley 1,813.00 Vanderlaan 2,417.00 Sakow 1,511.00 Shisler 906.00 Irving 2,553.00 Burwell 477.00 Kreimer 1,081.00 Rudnick 2,290.00 B & H Lenkowitz 1,686.00 L & S Lenkowitz 70.00 Schrager 3,021.00 Loos 3,021.00 $50,000.00 Fidelity Standard (with prejudgment interest) Claimant Fund Award Swid $ 2,279.50 Petruzel 2,279.50 Marino 2,279.50 B. Rosenberg 2,279.50 L. Rosenberg 2,279.50 Shasha Enterprises 2,279.50 Krause 1,959.50 Brooks, M.D., P.C. 2,279.50 Brooks 2,279.50 Jankovich 2,062.50 Sher 2,062.50 Low 2,279.50 Worthley 2,279.50 Vanderlaan 2,279.50 Sakow 2,011.50 Shisler 1,206.50 Irving 2,279.50 Burwell 1,531.50 Kreimer 2,219.50 Rudnick 2,279.50 B & H Lenkowitz 2,279.50 L & S Lenkowitz 474.50 Schrager 2,279.50 Loos 2,279.50 $ 50,000.00 Fidelity (without Standard interest) Claimant Fund Award Swid $ 3,021.00 Petruzel 3,021.00 Marino 3,021.00 B. Rosenberg 3,021.00 L. Rosenberg 3,021.00 Shasha Enterprises 3,021.00 Krause 1,435.00 Brooks, M.D., P.C. 2,870.00 Brooks 1,888.00 Jankovich 1,511.00 Sher 1,511.00 Low 1,813.00 Worthley 1,813.00 Vanderlaan 2,417.00 Sakow 1,511.00 Shisler 906.00 Irving 2,553.00 Burwell 477.00 Kreimer 1,081.00 Rudnick 2,290.00 B & H Lenkowitz 1,686.00 L & S Lenkowitz 70.00 Schrager 3,021.00 Loos 3,021.00 $50,000.00 Fidelity Standard (with pre-judgement interest) Fund Claimant Award Swid $ 2,279.50 Petruzel 2,279.50 Marino 2,279.50 B. Rosenberg 2,279.50 L. Rosenberg 2,279.50 Shasha Enterprises 2,279.50 Krause 1,959.50 Brooks, M.D., P.C. 2,279.50 Brooks, 2,279.50 Jankovich 2,062.50 Sher 2,062.50 Low 2,279.50 Worthley 2,279.50 Vanderlaan 2,279.50 Sakow 2,011.50 Shisler 1,206.50 Irving 2,279.00 Burwell 1,531.50 Kreimer 2,219.50 Rudnick 2,279.50 B & H Lenkowitz 2,279.50 L & S Lenkowitz 474.50 Schrager 2,279.50 Loos 2,279.50 $50,000.00 First Fidelity (without interest) Claimant Fund Award Neiderman $ 2,995.00 Swid 2,995.00 Morton 2,995.00 Ghane 2,995.00 Petruzel 2,995.00 Marino 2,995.00 B. Rosenberg 2,995.00 L. Rosenberg 2,995.00 Shasha Enterprises 2,995.00 Krause 1,422.50 Brooks, M.D., P.C. 2,845.00 Brooks 1,872.00 Jankovich 1,497.25 Sher 1,497.25 Low 1,797.00 Worthley 1,797.00 Vanderlaan 2,396.00 Sakow 1,497.25 Shisler 898.25 Irving 2,530.50 Loos 2,995.00 $50,000.00 First Fidelity (with prejudgment interest) Fund Claimant Award Neiderman $ 2,489.80 Swid 2,489.80 Morton 2,489.80 Ghane 2,489.80 Petruzel 2,489.80 Marino 2,489.80 B. Rosenberg 2,489.80 L. Rosenberg 2,489.80 Shasha Enterprises 2,489.80 Krause 2,140.44 Brooks, M.D., P.C. 2,489.80 Brooks 2,489.80 Jankovich 2,253.44 Sher 2,253.44 Low 2,489.80 Worthley 2,489.80 Vanderlaan 2,489.80 Sakow 2,197.44 Shisler 1,318.44 Irving 2,489.80 Loos 2,489.80 $50,000.00 The inclusion of post-judgment interest in the calculation of the awards has an inconsequential effect on the amounts to be paid and accordingly has been disregarded.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the initial payment from the mortgage brokerage guaranty fund for damages arising from illicit acts by Fidelity Standard and First Fidelity be made in accordance with the schedules set forth in finding of fact 16, said amounts to include prejudgment interest. All other claims for relief should be DENIED. DONE AND ENTERED this 6th day of January, 1987, at Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1987.
Findings Of Fact The pleadings in this case, Petitioner's Notice of Intention to Suspend" and Respondent's "Petition for Formal Hearing" establish the following uncontroverted facts: William D. McCaffrey is a mortgage solicitor holding license number HK0007207. The Department of Banking and Finance is charged with the responsibility and duty of administering and enforcing the provisions of the Mortgage Brokerage Act, including the duty to suspend the license of those persons registered under the act for violations of the terms therein. William D. McCaffrey has been convicted of a federal offense and is presently in federal custody at the Federal Correctional Institute in Montgomery, Alabama. On November 13, 1985, Respondent pled guilty to "Interstate transportation of fraudulently obtained credit cards, in violation of title 15 U.S. Code, Section 1644(b) as charged in count 6 of the Indictment". (Petitioner's Exhibit #2) Count 6 of the indictment provides: Count Six On or about December 13, 1982, defendants WILLIAM D. McCAFFREY and WILLIAM BARTRAM III did knowingly, with unlawful and fraud- ulent intent, transport and cause to be transported in interstate commerce from Clarkston, Georgia, by way of Nevada, to the District of Arizona, a fraudulently obtained American Express Credit Card in the name of William Smith, knowing said credit card to have been fraudulently obtained. All in violation of Title IS, United States Code, Section 1644(b), and Title 18, United States Code, Section 2. (Petitioner's Exhibit #1) The U.S. District Court for the District of Arizona in case #CR 85-53 PHX adjudged William D. McCaffrey guilty as charged and convicted, sentenced him to imprisonment for 5 years, and ordered that he pay a fine of $10,000 and make restitution to American Express in the amount of $5,481.27. (Petitioner's Exhibit #2 Judgement and Probation/Commitment Order)
Recommendation Based upon the foregoing it is recommended that a final order be entered suspending Respondent's mortgage solicitor's license for a period of two years. DONE AND ORDERED this 23rd day of October 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986. COPIES FURNISHED: Robert K. Good, Esquire Office of the Comptroller 400 West Robinson Street Orlando, Florida 32801 Clyde Taylor, Jr., Esquire 1105 Hays Street Tallahassee, Florida 32301
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 The central issue in this case is whether Petitioners are entitled to recover against the Mortgage Brokerage Guaranty Fund and, if so, the priority of payment to be applied to their claim. A secondary issue is whether claimants who gave notice prior to Petitioners are entitled to payment or whether they have waived or abandoned their claims.
Findings Of Fact Based upon the stipulations filed by the parties and the documentary evidence, I make the following findings of fact: The Mortgage Brokerage Guaranty Fund (the "fund") was created in 1977 to provide recovery for any person who meets all of the conditions prescribed in Section 494.043, Florida Statutes. The Department is charged to disburse the fund according to Section 494.044, Florida Statutes. Section 494.043, Florida Statutes, (Supp.1986) provides: Any person who was a party to a mortgage financing transaction shall be eligible to seek recovery from the Mortgage Brokerage Guaranty Fund if: The person has recorded a final judgment issued by a Florida court of competent jurisdiction in any action wherein the cause of action was based on s. 494.042(2); The person has caused to be issued a writ of execution upon such judgment and the officer executing the same has made a return showing that no personal or real property of the judgment debtor liable to be levied upon in satisfaction of the judgment can be found or that the amount realized on the sale of the judgment debtor's property pursuant to such execution was insufficient to satisfy the judgment; The person has made all reasonable searches and inquiries to ascertain whether the judgment debtor possesses real or personal property of other assets subject to being sold or applied in satisfaction of the judgment, and by his search he has discovered no property or assets or he has discovered property and assets and has taken all necessary action and proceedings for the application thereof to the judgment, but the amount thereby realized was insufficient to satisfy the judgment; The person has applied any amounts recovered from the judgment debtor, or from any other source, to the damages awarded by the court. The person, at the time the action was instituted, gave notice and provided a copy of the complaint to the division by certified mail; however, the requirement of a timely giving of notice may be waived by the department upon a showing of good cause; and The act for which recovery is sought occurred on or after September 1, 1977. Recovery of the increased benefits allowable pursuant to the amendments to s. 494.044 which are effective October 1, 1985, shall be based on a cause of action which arose on or after that date. The requirements of paragraphs (1)(a),(b),(c),(d), and (e) are not applicable if the licensee or registrant upon which the claim is sought has filed for bankruptcy or has been adjudicated bankruptcy; however, in such event the claimant shall file a proof of claim in the bankruptcy proceedings and shall notify the department by certified mail of the claim by enclosing a copy of the proof of claim and all supporting documents. Pertinent to this case, Section 494.044, Florida Statutes, (Supp. 1986) Provides: Any Person who meets all of the conditions Prescribed in s 494.043 may apply to the department for payment to be made to such person from the Mortgage Brokerage Guaranty Fund in the amount equal to the unsatisfied portion of that person's judgment or judgments or $20,000, whichever is less, but only to the extent and amount reflected in the judgment as being actual or compensatory damages. As to claims against any one licensee or registrant, payments shall be made to all persons meeting the requirements of s. 494.043 upon the expiration of 2 years from the date the first complete and valid notice is received by the department. Persons who give notice after 2 years from the date the first complete and valid notice is received and who otherwise comply with the conditions precedent to recovery may recovery from any remaining portion of the $100,000 aggregate, in an amount equal to the unsatisfied portion of that person's judgment or $20,000, whichever is less, but only to the extent and amount reflected in the judgment as being actual or compensatory damages, with claims being paid in the order notice is received until the $100,000 aggregate has been fully disbursed. * * * (3) Payments for claims shall be limited in the aggregate to $100,000, regardless of the number of claimants involved, against any one mortgage broker or registrant. If the total claims exceed the aggregate limit of $100,000, the department shall prorate the payment based on the ratio that the person's claim bears to the total claims filed. The first notice received by the Department alleging a claim against Barry Koltun or Oakland Mortgage Company was filed on August 13, 1984. This notice was filed on behalf of John and Mary Ahern. The Department utilized this notice in computing the two-year period addressed in Section 494.044(1), Florida Statutes. For purposes of recovery from the fund, the individual mortgage broker (Koltun) and the company qualified by the broker (Oakland) are treated as one. Petitioners filed an initial notice of their claim against the fund on October 16, 1985. This claim was asserted against Oakland Mortgage Company, Barry Koltun and Robert Tamarro. On January 23, 1987, the Department issued a "Notice of Intent to Grant or Deny Payment from the Mortgage Brokerage Guaranty Fund Re Oakland Mortgage Company." This notice outlined the status of some thirteen claims which had given notice of their civil actions against the licensee within the two year period. Two claimants, Kusich and Szafran, had provided all documentation required by Section 494.043, Florida Statutes; consequently, they were approved for payment. The Petitioner's claim was denied because they had allegedly failed to satisfy the statutory requirements of Section 494.043, Florida Statutes and had failed to do so prior to August 12, 1986 (the end of the two year period). The Petitioners timely filed a petition for formal Chapter 120 proceedings challenging the Department's denial of their claim for payment. Subsequent to January 23, 1987, Petitioners completed the conditions precedent for recovery and submitted all documentation required to satisfy the requirements of Section 494.043, Florida Statutes. On July 6, 1987, the Department received notice and a claim from the Intervenors. This claim satisfied the requirements of Section 494.043, Florida Statutes. Of the thirteen original claims filed, only two claimants (Kusich and Szafran) completed all conditions of Section 494.043, Florida Statutes, on or before August 12, 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Banking and Finance, Division of Finance, enter a Final Order finding the claims of Rusich and Szafran eligible for payment, and that the claim of Petitioners be evaluated as part of the second class established in Section 494.044(1), Florida Statutes, DONE and RECOMMENDED this 1st day of December, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 1st day of December, 1987. COPIES FURNISHED: Paul A. Zeigler, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. Suite 1010, Monroe Park Tower 101 North Monroe Street Tallahassee, Florida 32301 Paul C. Stadler, Jr., Esquire Department of Banking and Finance Division of Finance Suite 1302 The Capitol Tallahassee, Florida 32399-0350 Joseph Degance, Esquire 1995 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 Jack F. Weins, Esquire Boca Bank Building Suite 200 855 South Federal Highway Boca Raton, Florida 33432 Morey Udine, Esquire 3111 University Drive Suite 425 Coral Springs, Florida 32065-6930 Hon. Gerald Lewis Department of Banking and Finance Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts General Counsel Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 =================================================================
Findings Of Fact John F. Cole, David J. Hayes and Andre LeClerc conveyed certain real estate situated in Broward County ("the property") to respondent by quitclaim deed dated December 16, 1976, and recorded on December 29, 1976. This instrument reflects payment of a documentary stamp tax in the amount of thirty cents ($0.30) as well as a documentary surtax. On September 30, 1971, Thomas N. Sprague and Peggy A. Sprague had mortgaged the property to Merle Ford to secure repayment of the principal sum of twenty-three thousand five hundred dollars ($23,500.00). On October 1, 1971, the Spragues mortgaged the property to Atlantic Federal Savings and Loan Association of Fort Lauderdale to secure repayment of the principal sum of one hundred three thousand dollars ($103,000.00) On November 21, 1973, John A. Kasbar, as trustee, mortgaged the property to the Spragues to secure repayment of the principal sum of twenty- three thousand one hundred dollars ($23,100.00) On June 5, 1969, Esther E. Adams conveyed the property by warranty deed to Andre LeClerc, as trustee. The warranty deed reflected payment of a documentary stamp tax in the amount of five hundred forty-three dollars ($543.00). The property which was the subject of these transactions is evidently worth a substantial sum of money, but the evidence fails to establish the value of the interest quitclaimed on December 16, 1976, and does not establish what consideration for the quitclaim deed was given, if any was given.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the notice of proposed assessment be withdrawn. DONE and ENTERED this 13th day of December, 1977, in Tallahassee, Florida. COPIES FURNISHED: Mr. Edwin J. Stacker, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32304 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Mr. Ronald Payne, Esquire 621 South Federal Highway Fort Lauderdale, Florida
The Issue Whether the application of the Respondent Melvin Haber for a mortgage broker's license should be approved or denied.
Findings Of Fact Respondent Melvin Haber applied for registration as a mortgage broker by filing an application for registration as a mortgage broker on December 20, 1976. On January 14, 1977, Petitioner issued to Respondent its Notice of Intent to Deny Respondent's Application for registration as a mortgage broker. The reasons for such denial were set forth in an accompanying document entitled "Administrative Charges and Complaint." Petitioner Division of Finance had determined that Respondent Melvin Haber did not meet the proper qualifications necessary to be licensed as a mortgage broker and that he had, through Guardian Mortgage and Investment Corporation, charged and received fees and commissions in excess of the maximum allowable fees or commissions provided by the Florida Statutes; and although he had stated otherwise on his application, Respondent in fact had been charged in a pending lawsuit with fraudulent and dishonest dealings; and had demonstrated a course of conduct which was negligent and or incompetent in the performance of acts for which he was required to hold a license. By letter dated January 19, 1977, to Mr. Joseph Ehrlich of the Comptroller's Office, Tallahassee, Florida, Petitioner received a request from the Respondent Melvin J. Haber in which he acknowledged receipt of his rejection for mortgage broker's license and stated, "I received notice today of my rejection for my mortgage broker's license. I would, therefore, withdraw my application and re- quest return of $75.00 as I will not answer the rejection as I can't afford an attorney at this time." A Special Appearance to Dismiss Complaint was entered on February 11, 1977. The grounds are as follows: "1. The Department of Banking and Finance does not have jurisdiction over this Respondent. There is no jurisdiction in any administrative proceeding over this Respondent. There is no pending application for any mortgage broker's license by this Respondent. The application originally filed for the mortgage broker's license was withdrawn on January 19, 1977. A copy of the letter withdrawing application is attached hereto as Exhibit A. The proceedings are moot and would serve no useful purpose. Permitting this tribunal to proceed on a non-existent request for broker's license would deny to the Respondent due process of law, equal protection of the law, and his rights under the State and Federal Constitutions applicable thereto." On March 4, 1977, the Division of Administrative Hearings received a letter from Eugene J. Cella, Assistant General Counsel, Office of the Comptroller, State of Florida, requesting a hearing in this cause be set at the earliest practical date, and enclosed in the letter requesting a hearing was a copy of the Division of Finance's Administrative Complaint and a copy of the Respondent's Special Appearance to Dismiss the Complaint. A hearing was set for April 22, 1977, by notice of hearing dated March 30, 1977. A letter was sent by Irwin J. Block, Esquire, informing the attorney for the Petitioner that the Respondent "intends to permit the matter to proceed solely upon the written Special Appearance to Dismiss Complaint heretofore filed." Evidence was submitted to show that between May 29, 1973 and continuing through November 25, 1976, Guardian Mortgage and Investment Corporation and Melvin Haber as Secretary/Treasurer charged and received fees and commissions in excess of the maximum allowed fees or commissions in violation of the Florida Statutes and the Florida Administrative Code. Respondent's application for registration as a mortgage broker indicated that Petitioner was not named in a pending lawsuit that charged him with any fraudulent or dishonest dealings. However, on August 5, 1976, a suit was filed in Dade County, Florida, which charged the Petitioner and others with fraud in violation of the Florida Securities Law. The application was filed by Respondent, was processed by Petitioner and a Notice of Intent to Deny Respondent's Application for Registration was filed together with Administrative Charges and Complaint. The Division of Administrative Hearings has jurisdiction upon request of a party for a hearing once an application has been received and the Division has investigated and fully considered the application and issued its Notice of Intent to Deny and filed a Complaint on the applicant. In this cause the question of whether the applicant is entitled to a refund of fees also must be resolved. An orderly procedure to finalize the resolution of the issues is desirable and necessary. The Proposed Order filed by the Petitioner has been examined and considered by the Hearing Officer in the preparation of this order.
Recommendation Deny the application of applicant Melvin Haber for a mortgage broker's license. Refund the Seventy-Five Dollar ($75.00) fee Respondent paid upon filing the application. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Assistant General Counsel Office of the Comptroller Legal Annex Tallahassee, Florida 32304 Irwin J. Block, Esquire Fine, Jacobson, Block, Goldberg & Semet, P.A. 2401 Douglas Road Miami, Florida 33145
Findings Of Fact 1. On January 8, 1975, the United States District Court, District of Delaware, entered a "judgment and probation/commitment order," finding petitioner guilty of violating Title 18, United States Code, Sections 1010 and 371. These charges involved, inter alia, making, passing, uttering and publishing false statements and forged instruments in connection with the obtaining of mortgage insurance under the provisions of the National Housing Act. Petitioner was fined $2,500.00 and sentenced to serve three years imprisonment, the remainder to be suspended after six months and petitioner to be placed on probation for the remaining thirty months. On or about July 9, 1976, petitioner applied to respondent for registration as a mortgage solicitor. For the reason that petitioner was found guilty as described in paragraph one above, respondent determined that petitioner did not meet the proper qualifications to be licensed and issued its notice of intent to deny said license. In his answer and request for a hearing, petitioner admitted the material factual allegations of the complaint. Petitioner did not appear and therefore offered no evidence in his own behalf.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for registration as a mortgage solicitor be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of April, 1977. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1977 COPIES FURNISHED: Mr. David L. Pierce 891 West Tropical Way Plantation, Florida 33317 Richard E. Gentry, Esquire Assistant General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 Joseph M. Ehrlich Deputy Director Division of Finance Department of Banking and Finance 335 Carlton Building Tallahassee, Florida 32304 Comptroller Gerald A. Lewis The Capitol Tallahassee, Florida 32304
The Issue The issue presented for decision herein is whether or not Respondent's real estate brokers license should be disciplined because he engaged in acts and/or conduct amounting to fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust, and for failure to account and deliver1 in violation of Subsections 475.25(1)(b) and (d), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, including post-hearing memoranda, I hereby make the following relevant factual findings: During times material herein, Respondent was, and is, a licensed real estate broker in Florida and has been issued license number 0007278. (Petitioner's Exhibit 1). Maryland Properties, Inc. was a corporation organized under the laws of Florida during times material and incorporated as such on March 24, 1977 and was involuntarily dissolved on November 10, 1983. At times material, Respondent was President of Maryland Properties, Inc. (Petitioner's Exhibit 2). Prior to December, 1980, Mr. and Mrs. Emeterio Padron Cruz were the owners of lots 16 and 17, block 11, of Athol Subdivision, Dade County, Florida. (Petitioner's Exhibit 11) Padron Deposition-Page 5; Petitioner's Exhibits 12-Mrs. Padron Deposition-Pages 2 and 3; Petitioner's Exhibit 3). Mr. and Mrs. Padron were interested in selling lots 16 and 17 and Respondent, in his capacity as real estate broker, sought buyers on behalf of the Padrons. (TR 94). On September 6, 1980, a contract was obtained by the Respondent between Mr. and Mrs. Padron, as sellers, and Roberto Hernandez and/or assigns as buyer. According to the terms of the contract, a real estate commission of $650 was to be paid to Respondent. (TR 97). The transaction between the Padrons as sellers and Roberto Hernandez as buyers did not materialize and instead Respondent, through the entity Maryland Properties, Inc., purchased the property and a closing was held on December 1, 1980. Respondent became interested in the purchase of this property based on a need expressed by the Padrons that they needed to dispose of their property and they wished that Respondent would purchase the property along the same terms as Roberto Hernandez had previously agreed. In this regard, Respondent executed the closing documents as President of Maryland Properties, Inc., the purchaser of the Padron property. The Padrons were aware that Respondent was President of Maryland Properties, Inc., based on their review of the closing documents. Respondent received a $650 commission in his capacity as broker in the Padron to Maryland Properties, Inc. transaction. (Petitioner's Exhibit 13; Petitioner's Exhibit 11-Padron Deposition-Pages 13 and 14). As part of the Padron/Maryland Properties, Inc. transaction, a mortgage dated December 1, 1980 was given back to Padron by Maryland Properties, Inc. for $8,000. The mortgage deed and note were not recorded until March 11, 1981. Respondent prodded the Padrons to record the mortgage and to keep the note in a safe in the event that it was needed later on. Per Respondent's insistence, the Padrons finally recorded the mortgage and note on March 11, 1981. (Petitioner's Exhibit 4). On November 27, 1980, Maryland Properties, Inc., through its President, the Respondent, entered into a contract to sell the same lots (16 and 17) to Agustin R. and Gladys A. Verde (Respondent's Exhibit 1). The Maryland Properties, Inc./Verde transaction closed on February 4, 1981 without the Verdes or their attorney, Antonio Alonso, being aware of the Maryland Properties, Inc. to Padron Mortgage. At no time prior to closing did the Respondent reveal to the Verdes or Mr. Alonso the existence of the mortgage. Mr. Alonso, prior to closing, received and reviewed an abstract on the property which abstract did not contain the mortgage as it could not have since the mortgage was not recorded until subsequent to the Verde closing. Additionally, Respondent executed an affidavit prior to closing wherein it is stated that the property was free and clear of any lien or encumbrance. (Petitioner's Exhibit 15) The closing statement executed by Respondent speaks of a purchase money (first) mortgage, which mortgage was from the Verdes to Maryland Properties, Inc. (Petitioner's Exhibits 4, 5, 8, 14, 15; TR 70-77). Respondent, as President of Maryland Properties, Inc., failed to make the final mortgage payment of $4,000 to Padron when same became due on December 2, 1982. Padron foreclosed on the mortgage which action was initiated on December 1, 1983. Respondent entered a settlement to the foreclosure action and paid the mortgage deficiency, however, there remains outstanding an award for attorneys fees for the foreclosure action in favor of the Padron's attorney (Louis Sabatino).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent 's license number 0007278 be suspended for a period of six (6) months. RECOMMENDED this 27th day of May, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1986.
Findings Of Fact Klingshirn Corporation executed and delivered a mortgage dated February 1, 1974 as security for a loan from Petitioner. This mortgage was recorded March 1, 1974 in Official Records of Palm Beach County. Klingshirn Corporation executed and delivered a mortgage deed on the same property and an assignment of leases, rents, and profits for this property dated March 1, 1974 to Fulton and Goss. This mortgage was recorded March 5, 1976. Klingshirn Corporation was in the process of building condominiums for which the mortgages were executed. In 1976 Klingshirn experienced financial setbacks and became delinquent on the mortgage payment. By deeds dated November 16, 1976 Klingshirn conveyed the property that was subject to the above mortgages to Boca Village Realty, Inc., a shell corporation, for the purpose of eliminating the thught-to-be-unrecorded mortgage held by Fulton and Goss. Boca Village Realty, Inc. by deeds dated December 17, 1976 (Exhibits 1 and 2) transferred the property to Petitioner by warranty deed which expressly stated the intent of the parties that there be no merger of grantee's mortgage with the fee. Documentary stamps in excess of $6,000 were placed on this deed to cover the value of the mortgage and minimal surtax stamps of 55 cents were placed on this deed. On March 7, 1977 Petitioner filed Complaint in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County against Fulton and Goss and another to foreclose the mortgage executed to Petitioner by Klingshirn. The parties stipulated that if surtax is due the required tax, plus interest is on the balance due on the mortgage of $2,248,774.
