Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner's application to take the examination to be licensed as a mortgage broker be DENIED. DONE and ORDERED this 28th day of January, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 January, 1988. COPIES FURNISHED: Scott William Katz 361 Midpines Road Palm Springs, Florida 33461 Lawrence S. Krieger Assistant General Counsel Department of Banking and Finance Office of Comptroller 111 Georgia Avenue West Palm Beach, Florida 33401-5293 Honorable Gerald Lewis, Comptroller, State of Florida The Capital Tallahassee, Florida 32399-0350 Charles L. Sutts General Counsel Plaza Level The Capitol Tallahassee, Florida 32399-0350
The Issue The issue in this case is whether the Petitioner’s application for licensure as a mortgage broker should be granted.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: A Final Order be entered denying Petitioner's application for licensure as a mortgage broker. DONE AND ENTERED this 6th day of January, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2009. COPIES FURNISHED: David L. Fleming 1653 Bass Avenue Seville, Florida 32191 Robert H. Schott, Esquire Office of Financial Regulation Post Office Box 8050 Tallahassee, Florida 32314-8050 Alex Hager, Acting Commissioner Office of Financial Regulation 200 East Gaines Street Tallahassee, Florida 32399-0350 Robert Beitler, General Counsel Department of Financial Services 200 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350
The Issue Whether Mortgage Broker License No. 3534 should be suspended or revoked under Section 494.05, F.S. At the hearing, the Respondent filed an answer to the charges in the Petitioner's Administrative Complaint, incorporating therein affirmative defenses. Rule 28-5.25(2), Florida Administrative Code, provides that the party may file an Answer which may contain affirmative defenses within 20 days of service of the Petition. Respondent's basis for late filing was inadvertence and neglect of its counsel. The Answer contained a general denial of the allegations and set forth affirmative defenses asserting lack of jurisdiction of the Petitioner to pursue its claims for alleged actions which took place on or before October 19, 1974, which was prior to the issuance of the mortgage broker license to Respondent. Further defenses included the claim that the Administrative Charges and Complaint are vague and ambiguous, that Petitioner had taken written action against Respondent without a hearing and denied it due process of law prior to the filing of the Administrative Charges and Complaint, thereby constituting double jeopardy, that Petitioner has unilaterally and without hearing denied Respondent renewal of its license, therefore denying it due process of law and claiming that petitioner is estopped from proceeding on the ground that it violated Section 494.06(5), in not keeping confidential the examination and investigation of the Respondent by giving press releases designed to influence the outcome of the hearing. The Hearing Officer permitted the late filing of the Answer and Affirmative Defenses at the hearing, over the objection of the Petitioner who claimed lack of notice as to the affirmative defenses. Respondent made a motion at the hearing to quash or abate the charges on the grounds of lack of jurisdiction on the basis set forth in its aforesaid pleading and on the grounds that Section 494.05(1) permits the petitioner only to investigate actions of licensees and not to suspend or revoke such licenses. The motion was denied by the Hearing Officer under the authority granted to deny, suspend or revoke licenses pursuant to Section 494.05, F.S. From statements of counsel at the hearing, it appears that Respondent's application for yearly renewal of its license was denied by Petitioner on September 3, 1975. However premature such a denial might have been, the question is not in issue in the instant proceeding. Nor is any purported violation by Petitioner of Section 494.06(5), concerning confidentiality of its investigations of Respondent. Both parties made opening statements and closing arguments. The Petitioner presented its case through two witnesses and submitted documentary evidence. The Respondent did not call, any witnesses. Petitioner also called Frank H. Roark, Jr. President of Respondent Corporation as a witness. Mr. Roark, after being sworn, declined to testify on the grounds of possible self-incrimination. The Hearing Officer thereupon excused the witness. Upon a showing by the Petitioner that the books and records of Respondent Corporation had been requested by Subpoena Duces Tecum and its request that Mr. Roark be required to identify the corporate books and records in his capacity as an officer of the corporation, over objection of Respondent's counsel, the Hearing Officer permitted Mr. Roark to testify for this limited purpose.
Findings Of Fact The Department of Banking and Finance of the State of Florida issued Mortgage Broker License Number 3534 to Respondent on October 10, 1974 (Petition and Answer). The transactions of the Respondent which are the subject of the Administrative Charges and Complaint, concern the purchase by investors/lenders of corporate promissory notes issued by a land development company which are secured by mortgages on its land. The purpose of selling the note is for the land development company to raise funds for the development of real property. The sales of the notes were made by Respondent to individual investors. Usually these transactions were handled through what was termed a "Master Broker" who was a middle man between the land developer and the Respondent mortgage broker which actually made the individual sales of the notes. Typical of the manner in which Respondent conducted these transactions was to enter into an agreement with an investor termed an "Application To Purchase a Mortgage" for a certain face amount at a specified interest rate with interest payable monthly and with concurrent delivery by the investor to Respondent of the stated sum under the conditions that the note would be executed, the mortgage recorded, and the note and recorded mortgage delivered to the investor-purchaser. In due course, a promissory note issued by the land development corporation (the borrower), was delivered to the investor, along with a mortgage deed to specified real property to secure the note. Some notes were payable on an interest only basis and some on a principal and interest basis. Some involved the issuance of title insurance policies and others did not. In some cases, Respondent remitted funds involved in the transaction to the "Master Broker" and in some cases directly to the land developer, less an amount retained by Respondent, ostensibly for its fees, commissions, and/or other charges. The funds were placed into escrow bank accounts when they were received from the investors by Respondent and then sometimes on the same day or in most cases several days or weeks later, the funds less the amount retained by Respondent, were forwarded on to the "Master Broker" or directly to the developer (testimony of Mr. Hunt, Petitioner's Exhibits 1, 3 & 4). Acting upon a request of the State Comptroller to have all mortgage companies examined, in the latter part of July, 1975, Mr. Lawrence W. Hunt, a Financial Examiner Supervisor of Petitioner's Division of Finance along with three assistants went to the Respondent's office to examine its records and determine from the examination whether or not violations of the Mortgage Brokerage Act had been committed. Utilizing source documents from the company records, Mr. Hunt and his associates prepared a worksheet and listed thereon various items of information gleaned from these records (Petitioner's Exhibit 1). After preparation of the worksheet, overcharges as to the 402 transactions identified in the worksheet were computed by Mr. Joseph Ehrlich, Deputy Director of the Division of Finance, solely from the worksheet obtained by the examiners (Petitioner's Exhibit No. 2). Such overcharges were computed with respect to maximum fees or commissions which a broker could charge in accordance with the provisions of Rule 3-3.08, Florida Administrative Code, in consideration of the amount of funds retained by Respondent, Mr. Hunt is not a state auditor and his examination of records did not go into the depth of an audit such a compilation of financial statements. His work consists basically of an examination which involves obtaining information from corporate records and placing it on worksheets so it can be analyzed. During Mr. Hunt's visit to Respondent's place of business, he received full cooperation of its officers and employees and found the records to be in good order. He also had no reason to question any of the entries in any of the records that he observed. Neither he nor Mr. Ehrlich had received complaints from any individual or organization about Respondent's operations prior to his visit. He did not at any time contact any of the lenders or borrowers involved in Respondent's transactions (Testimony of Mr. Hunt, Mr. Ehrlich, Petitioner's Exhibits 1 and 2). On October 11, 1974, the Division of Finance issued a "Memorandum to all Mortgage Brokers" in which it was stated that it had been brought to the Division's attention that a number of mortgage brokers in transactions (such as those under consideration here), were remitting investors' funds to the land developer rather than placing the funds in an escrow account, and that such funds were being remitted in anticipation of receiving a recorded mortgage and note. The Memorandum warned that this practice could result in substantial losses to the broker in repaying investors should the land developer fail and was also in violation of the Mortgage Brokerage Act and could lead to the suspension or revocation of a license under Section 494.05, (1)(f), Florida Statutes. This section concerns placement of funds received in escrow accounts where they shall be kept until disbursement thereof is properly authorized (Respondent's Exhibit A). The Memorandum was sent to Respondent among others Mr. Hunt, during his examination of Respondent's records, found that Respondent ,had changed its escrow procedures approximately the date that the bulletin was issued and that there were no discrepancies after that date concerning escrow monies. By further correspondence in December, 1974, and May and June of 1975, Respondent's President posed various questions to Mr. Ehrlich to clarify certain aspects of escrow account requirements and received replies thereto (Respondent Composite B - Respondent's Exhibit C, D, F and G. (Note: There is no Exhibit E) In 402 separate transactions conducted by Respondent during the years 1973, 1974, and 1975, the mortgages which were purchased by the investors were delivered to the investor within varying periods from one day from the sale date until almost two months from the sale date. Forwarding of funds by the Respondent to the "Master Broker" or to the land development company was also accomplished in these transactions within varying periods of time from the sale date. These ranged from the same date as the sale to periods of a month or so thereafter, but usually on the date of delivery of the mortgage to the investor. The amounts forwarded by Respondent consisted of the face amount of the note and mortgage, less a certain amount which was retained by the Respondent (Petitioner's Exhibit 1). No effort was made by Petitioner's examiner to determine either the basis for the amount retained by Respondent or its composition. For example, he did not determine whether there were any "points" for service charges or discounts of any sort included in the retained sum. The examination was made solely on the basis of examining the business records of Respondent which did not reflect a breakdown of the retained amount. However, it could be deduced from various documents in individual investor files that certain amounts had been paid by someone unknown for title insurance premiums, recording fees and intangible taxes. The dates of mortgage delivery shown by Mr. Hunt in his worksheet were dates which he assumed were correct but he had not verified by any person the exact dates the mortgage was delivered to the investors. Neither could he ascertain from the records whether or not an investor had authorized Respondent to disburse funds at a particular time. The overcharges were determined in accordance with the formula set forth in Rule 3- 3.08, F.A.C., which is on a "gross proceeds" loan in which the borrower indicates that he wished to borrow a specified amount with all fees and charges to come out of the gross amount, thereby resulting in a reduced amount being provided to the borrower. The overcharges were computed without knowledge of whether the amount retained by the Respondent, as shown in Petitioner's Exhibit 1, included payment for state intangible tax, documentary stamps, and recording fees (Testimony of Mr. Hunt, Mr. Ehrlich, Petitioner's Exhibit 1 and 2). The overcharges set forth in Petitioner's Exhibit 2 were unrebutted by Respondent and are deemed correct. In a transaction between Respondent and Cary G. Anderson, who applied for purchase of a mortgage on May 7, 1974, in the face amount of $3,500.00, the file relating to the transaction did not reflect the amount of any costs to be paid by Respondent in the matter, nor did it reveal a specific figure for brokerage fee or commission charged by Respondent. The file did reflect a bill for title insurance premium in the amount of $45.00 and recording fees in the amount off $22.25, $5.25 documentary stamps, and $7.00 for intangible tax. The amount of overcharge was $175.46. In another $2,500 transaction with Mr. Anderson, the amount remitted to the land developer was $2,075.00. The amount retained by Respondent was $425.00. Petitioner's Exhibit number 2 establishes an overcharge from this transaction of $61.37. There was no copy of the mortgage in the file and therefore no information upon which to determine the payment of intangible taxes, documentary stamps and recording fees (Petitioner's Exhibit 3). In a $5,000 transaction between Walter L. and Thelma T. Beach and Respondent with application for purchase mortgage dated July 30, 1974, a check was written on Respondent's escrow account to Kingsland Development in the amount of $4,100. The maximum allowable brokerage fee or commission under the law would have been $590.90. The amount retained by Respondent was $900.00. The mortgage indicated that documentary stamps in the amount of $7.50 and intangible tax of $10.00 were paid. Assuming that Respondent paid the intangible taxes, and documentary stamps, the excess fee charged according to calculation under Rule 3-3.08, was $281.60 (Testimony of Mr. Hunt, Petitioner's Exhibits 1, 2 and 4). In respect to the above three transactions Petitioner's examiner did not find closing statements in the file, nor did he go to the Florida title ledger or Attorney's ledger of Respondent's records. However, he had, at the outset of his investigation, asked Respondent to make available all records concerning the transactions (Testimony of Mr. Hunt).
The Issue Whether the Petitioner's application for licensure as a mortgage broker should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Office is the state agency responsible for regulating mortgage brokerage and mortgage lending and for licensing mortgage brokers. §§ 494.0011(1); 494.0033(2), Fla. Stat. License revocation and criminal prosecution The Office's predecessor, the Department of Banking and Finance ("Department"), issued a mortgage broker's license to Mrs. Comas in 1997. Mrs. Comas worked as a mortgage broker with Miami Mortgage Lenders until 1999, when she left her employment with that company after she was involved in what will be referred to as "the Sipple transaction." The Department initiated disciplinary action against Mrs. Comas's mortgage broker's license, and, because Mrs. Comas stipulated to the material facts of the Sipple transaction, an informal administrative hearing was held before a hearing officer appointed by the Department. The Department entered a final order revoking Mrs. Comas's mortgage broker's license on June 25, 2001, which was upheld on appear by the Third District Court of Appeal in Comas v. Department of Banking and Finance, 820 So. 2d 1088 (Fla. 3d DCA 2002). The material facts of the Sipple transaction and the basis for the revocation of Mrs. Comas's mortgage broker's license were set out by the district court in Comas, which quoted the Final Order with approval, as follows: "Appellant's conduct in altering a customer check, depositing it in her personal account, and later writing a letter to the customer on company letterhead falsely stating that the funds were in the hands of the title company jeopardized not only the customer, but also her employer and the title company. This conduct violates the numerous statutory provisions referenced in the Final Order, casts considerable doubt on either Appellant's competence, integrity, or both, and clearly warrants license revocation." Criminal charges were filed against Mrs. Comas as a result of her actions in the Sipple transaction. The information filed against Mrs. Comas, and all counts thereof, was dismissed by order of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, in April 2002. Denials of applications for licensure as a mortgage broker subsequent to revocation In October 2002, Mrs. Comas applied for licensure as a mortgage broker. The Office notified her that it intended to deny her application in a Notice of Denial dated March 17, 2003. Mrs. Comas requested an administrative hearing, and the case was transmitted to the Division of Administrative Hearings and assigned DOAH Case No. 03-1738. A recommended order was entered on September 30, 2003, in which the administrative law judge found that Mrs. Comas failed to establish that she was rehabilitated and recommended that Mrs. Comas's application be denied. The Office entered a final order in which it adopted the findings of fact and conclusions of law in the recommended order, and denied Mrs. Comas's application for licensure as a mortgage broker. Among the findings of fact made in the Recommended Order in DOAH Case No. 03-1738 and adopted in the Office's Final Order was a finding that Mrs. Comas had failed to make restitution to the owner of Miami Mortgage Lenders, who had paid Ms. Sipple the monies that Mrs. Comas had improperly deposited in her personal account. On March 10, 2006, Mrs. Comas again applied to the Office for licensure as a mortgage broker. In a Notice of Denial of Application dated November 9, 2006, the Office notified Mrs. Comas that it intended to deny her application. Mrs. Comas did not request an administrative hearing, and the Office entered a final order denying the application on December 18, 2006. The Office incorporated into the final order the factual bases set forth in the November 9, 2006, Notice of Denial of Application, which were virtually identical to the factual bases set forth in paragraphs a. through d. of the Notice of Denial at issue herein. RPM Lenders, Inc. and related companies In 1997, Mrs. Comas and her husband, Rolando Comas, founded RPM Lenders, Inc. ("RPM Lenders"). Mrs. Comas worked as a mortgage broker with RPM Lenders from the time she left her employment at Miami Mortgage Lenders in 1999 until her mortgage broker's license was revoked in 2001. Mrs. Comas continued working for RPM Lenders after her mortgage broker's license was revoked in 2001.2 RPM Lenders shared office space with RPM Systems, a computer company which set up computer networks and distributed computers, and it also shared office space with RPM Loans and Realty, which was created in 1999 or 2000 to handle real estate transactions. On or about December 29, 2003, Mr. Comas and Mrs. Comas, on behalf of RPM Lenders, signed a Stipulation and Consent that was incorporated into a final order entered by the Office on December 30, 2003. In the Stipulation and Consent, it was recited that Mrs. Comas was the sole owner and president of RPM Lenders until May 14, 2003. In paragraph 6.1.1 of the Stipulation and Consent, Mrs. Comas agreed that she would "not become a mortgage broker, principal broker, principal representative, owner, officer or director of R.P.M. Lenders, Inc." From 2004 through April 17, 2008, Mrs. Comas was the corporate secretary for RPM Lenders until it ceased business in 2007, when its name was changed to ROC Lenders, Inc. ROC Lenders, Inc., never did any business, but Mrs. Comas nonetheless continued to serve as that company's corporate secretary until her name was deleted as the corporate secretary pursuant to a filing with the Florida Secretary of State dated April 17, 2008.3 At the times material to this proceeding, Mrs. Comas managed RPM Lenders, RPM Loans and Realty, and RPM Systems. Her title with RPM Lenders and RPM Loans and Realty was "Finance Manager," and her duties included the general daily management responsibilities of an office manager, such as ensuring that office equipment was repaired and maintained and ordering office supplies, as well as duties that included customer support, marketing and advertising, developing and implementing quality control procedures, preparing financial statements, handing accounts receivable and accounts payable, reconciling all bank accounts, reviewing all funded files, and attending all of the closings. Mrs. Comas was paid a management fee for her services as Financial Manager and Office Manager for RPM Lenders and RPM Loans and Realty. In providing customer support for RPM Lenders and RPM Loans and Realty, Mrs. Comas responded to customer complaints on behalf of the brokers employed by those companies, reviewing files and attempting to resolve problems and disagreements between customers and brokers. RPM Loans and Realty was created in 1999 or 2000 "for realty purposes," and Mrs. Comas began working with RPM Loans and Realty as a real estate associate beginning in March 1999. Mrs. Comas continued to work with RPM Loans and Realty both as manager and as a real estate associate up to the time of the final hearing.4 Rehabilitation As part of her practice as a real estate associate, Mrs. Comas accepts deposits from buyers and transmits them to title companies.5 Mrs. Comas's license as a real estate associate was current at the time of the final hearing, and it has never been the subject of disciplinary action. In a letter dated November 12, 2008, to Sherry Sipple, the person whose check Ms. Comas altered and deposited in her personal bank account, Mrs. Comas denied having altered the check, stating that her name was placed on the check by someone else. Mrs. Comas did not mention in the letter her depositing Ms. Sipple's check in her personal bank account, and Mrs. Comas blamed Ms. Sipple and Ms. Sipple's brother for what she called a "misunderstanding," stating that, because Ms. Sipple and Ms. Sipple's brother went to the closing on the subject property without Mrs. Comas, she was unable to deliver to the title company the money Ms. Sipple had entrusted to her. Mrs. Comas apologized to Ms. Sipple "for what happened," but then asked that she give Mrs. Comas's attorney a "statement of acceptance of this BIG MISUNDERSTANDING."6 Mrs. Comas telephoned Mark Mazis, her employer at Miami Mortgage Company, and apologized to him for "what happened."7 Mrs. Comas acknowledged in her testimony at the final hearing that she did something wrong, although she insisted that she did not intend to steal Ms. Sipple's money by placing it in her personal bank account but intended only to expedite Ms. Sipple's closing. Since her license was revoked in 2001, Mrs. Comas has contributed to charities and attends church approximately twice a month. Summary The Sipple transaction The evidence presented by the Office in the form of the opinion of the Third District Court of Appeal in Comas v. Department of Banking and Finance establishes conclusively that, in 1999, Mrs. Comas committed fraud, misrepresentation, deceit, or incompetence in a mortgage financing transaction; that Mrs. Comas failed to deliver funds to her customer that Mrs. Comas was not entitled to retain; and that Mrs. Comas misappropriated the customer's check by depositing it in her personal account. Untruthful testimony in DOAH Case No. 03-1738 The evidence presented by the Office is not sufficient to support a finding of fact that Mrs. Comas gave untruthful testimony in a previous administrative proceeding. In the Notice of Denial dated August 6, 2008, the Office stated as one of the factual grounds for its denial of Mrs. Comas's application for a mortgage broker's license that Mrs. Comas had testified untruthfully at the final hearing in DOAH Case No. 03- 1738. This allegation was apparently based on several findings of fact in the Recommended Order which were referenced in the Office's Proposed Recommended Order in the instant case, as follows: At the July 23, 24[, 2003] formal hearing three issues were litigated — Mrs. Comas’s claims about the circumstances of the Sipple transaction, Mrs. Comas’s claim that she had paid restitution, and her claim that she had apologized to the victims, Sherry Sipple (now Sherry Mercugliano) and Marc Mazis. (Exhibit Q) On these three claims, Mrs. Comas’s testimony conflicted with that of the victims. (Id.) The Administratively [sic] Law Judge weighed the conflicting testimony and determined: 18. Through the time of the hearing, Comas falsely claimed the transaction failed because Sipple was dissatisfied with the interest rate Comas was able to obtain. This testimony is rejected in favor of Sipple's much more convincing explanation that she rejected the balloon payment Comas proposed, insisting upon the fixed rate which she had required from the beginning. * * * 20. For all of the trouble Comas caused Sipple and Mazis, she has never apologized to them. Although Comas testified to the contrary on that point, her self- serving testimony is not credible. * * * 22. Taking into account the entire record, and having had the opportunity to view the demeanor, credibility, ability to perceive facts, knowledge of the facts and circumstances of the events to which they testified, and motive to testify, of each of the witnesses in close and stressful quarters, the conclusion is inescapable that the victims' version of events is entirely consistent with the truth. To the extent that victims' recollections or characterizations of material events differ from those of Comas and her witnesses, the testimony of the victims is credited. (Emphasis added.) (Id.) Consequently, Petitioner made false claims and testified untruthfully at the July 23-24, 2003 formal hearing. The discussions in the quoted paragraphs are not findings of fact regarding the truth or falsity of Mrs. Comas's testimony. Rather, the Administrative Law Judge was assessing the quality and quantity of the evidence presented by the parties as a predicate to making findings of fact regarding the issue of whether Mrs. Comas had established rehabilitation. The Administrative Law Judge's assessment that Mrs. Comas's testimony was not as credible or as persuasive as the conflicting testimony of other witnesses was an assessment of the weight of the evidence and the credibility of the witnesses made by the Administrative Law Judge in order to determine which conflicting testimony and evidence is the more persuasive. Although the Administrative Law Judge included in paragraph 18 of the Recommended Order in DOAH Case No. 03-1738 a statement that Mrs. Comas made a "false" claim in her testimony, it is clear from a reading of the entire paragraph that the Administrative Law Judge found Ms. Sipple's version of the events more credible. Indeed, an Administrative Law Judge would be acting improperly if he or she were to make a finding of fact that a party's or witness's testimony was untruthful or false because the truth or falsity of evidence is not at issue in an administrative proceeding. Such a finding would amount to a finding that the party or witness had committed perjury, which cannot be litigated in an administrative forum but is, rather, subject to criminal prosecution. See Ch. 837, Fla. Stat. The Office's denials of Mrs. Comas's applications for licensure subsequent to the revocation of her license The evidence presented by the Office establishes that it denied Mrs. Comas's applications for licensure as a mortgage broker in 2003 and 2006. The 2003 denial was based on a Final Order in which the Office, adopting the findings of fact and conclusions of law in the Recommended Order in DOAH Case No. 03- 1738, found that Mrs. Comas had failed to establish that she had rehabilitated herself since the license revocation. The 2006 denial referenced, among other grounds, the denial of her application for licensure in 2003 for fraud and dishonest dealing. The Office's denials of Mrs. Comas's previous applications for licensure cannot, however, serve as an independent basis for denial of the application at issue herein. Were the previous denials sufficient of themselves to provide a basis for denying Mrs. Comas's future applications, the Office could perpetuate the denial of Ms. Comas's future applications indefinitely without regard to any efforts of Mrs. Comas to prove herself entitled to licensure. Mrs. Comas's service as an officer of RPM Lenders The evidence presented by the Office is sufficient to establish that Mrs. Comas violated a final order of the Office by serving as an officer of RPM Lenders and its successor company, ROC Lenders, Inc., subsequent to signing a stipulation in December 2003 averring that she would not serve as a corporate officer of RPM Lenders. Mrs. Comas's role in responding customer complaints about the service provided by mortgage broker employed by RPM Lenders does not, however, rise to the level of acting as an officer of the corporation.8 Rehabilitation The evidence presented by Mrs. Comas is not sufficient to establish that she has rehabilitated herself in the 10 years that have elapsed since the Sipple transaction. Although she attends church and contributes to charities, she presented no evidence of any other community service. The lack of any disciplinary action against her real estate associate's license since it was issued is a factor in Mrs. Comas's favor, but she failed to present any evidence regarding the number of real estate transactions she handles, and it was, therefore, not possible to assess the frequency with which she handled the funds of others in the context of real estate transactions. Other than her testimony about the November 2008 conversation with Mr. Mazis, Mrs. Comas presented no evidence with respect to her apology to him or to any acknowledgment she made to him that she had acted improperly in the Sipple transaction. Mrs. Comas's letter of apology to Ms. Sipple consisted primarily of her attempts to cast her actions in the Sipple transaction in a light favorable to herself, to excuse her actions as efforts to assist Ms. Sipple, and to blame others, including Ms. Sipple, for the incident. Although Mrs. Comas expresses remorse for what happened, she does not accept responsibility for her actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Office of Financial Regulation enter a final order denying the application of Marta Comas for licensure as a mortgage broker pursuant to Section 494.0033(4), Florida Statutes, for the acts specified in Section 494.0041(2)(b), (f), (h), (i), (j), (p), (q), and (u)2., Florida Statutes. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2009.
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 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 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 Whether Respondent Department should deny Petitioner's application for a mortgage solicitor's license upon the grounds that Petitioner violated Chapter 494, Florida Statutes (1979), and lacks the requisite honesty, truthfulness, and integrity to act as a mortgage solicitor in Florida.
Findings Of Fact Upon consideration of the testimony and documentary evidence presented at hearing, the following facts are determined: On February 4, 1980, the Department served Requests for Admissions upon the Applicant. The Requests asked the Applicant to admit or deny the truth of each alleged finding of fact contained in the Department's Order of Denial dated December 7, 1979. Those findings of fact form the basis of the Department's proposed denial of Applicant's license. By his Answers to Request for Admissions (Respondent's Exhibit 3), the Applicant admitted the truth of each and every Finding of Fact contained in the Department's Order of Denial. The relevant Findings of Fact, which are now admitted and undisputed, are set out below: The Applicant, James B. Payne, was previously licensed as a mortgage broker in the State of Florida under license number 2387 and registration number 90-1. His license expired on or about August 31, 1977. On or about July 18, 1979, the Department received Applicant's application requesting registration as a mortgage solicitor. The application was not completed until Applicant passed his mortgage brokerage license exam. On August 29, 1979, the Applicant took, but failed to pass, the mortgage brokerage examination in Miami, Florida. However, on October 9, 1979, the Applicant retook, and successfully passed, the examination. Thereafter, the Department, pursuant to Chapter 494, supra, conducted an investigation into the Applicant's background and qualifications for registration as a mortgage solicitor. On or about May 15, 1978, [prior to filing the application at issue here] the Applicant had applied to the Department for a mortgage solicitor's license, pursuant to Chapter 494, supra. After receiving his application, the Department conducted an investigation into the background and qualifications of the Applicant. That investigation resulted in an Order of Denial which was issued on August 4, 1978, in administrative proceeding number 78-9 DOF (ME). An Affidavit of Default was entered in that action on September 1, 1978. That earlier Order of Denial [which became final and is not at issue here] contained the following allegations, now admitted by the Applicant: "(i) That at all times material hereto [subparagraphs (i)-(iv), post] the Applicant was employed by Metropolitan Mortgage Company as its Chief Financial Officer at 2244 Biscayne Boulevard, Miami, Florida. "(ii) On or about August, 1976, the Applicant did knowingly and with intent to defraud Metropolitan Mortgage Company, approve payment of a purported $5,000 mortgage fee to one Robert Day by check number 8309 issued by Metropolitan Mortgage Company and dated September 2, 1976. Said check was cashed on or about September 3, 1976, at the Capital Bank of Miami. On or about September 2, 1976, a cashier's check in the amount of $4,500.00 was issued by the Capital Bank of Miami and made payable to the Applicant. The Applicant represented that said payment to Robert Day constituted a share of a brokerage commission for commitments entered into between Metropolitan Mortgage Company and Tremont Savings and Loan Association. The primary fee for said transaction was paid to Mortgage Brokerage Services, East Orange, New Jersey. No such brokerage commission sharing agreement between mortgage brokerage services and Robert Day ever existed. "(iii) On or about June 3, 1977, the Applicant did knowingly and with intent to defraud Metropolitan Mortgage Company, make a false requisition upon said Metropolitan Mortgage Company for a check disbursement in the amount of $3,150.00 payable to State Savings and Loan Association by check number 11797 dated June 3, 1977, and drawn on Flagship National Bank. The Applicant did knowingly and with intent to defraud Metropolitan Mortgage Company, misrepresent that said requisition was for a verbal commitment issued by State Savings and Loan Association to buy conventional mortgages valued at $315,000.00 at a net of 8.75 percent. The Applicant did misrepresent to State Savings and Loan Association that said check constituted rentals collected by Metropolitan Mortgage Company on two foreclosed units at Tallwood Condominiums. At no time did State Savings and Loan Association issue the above described commitments either verbally or in writing. In fact, said requisition was made for the purpose of payment to State Savings and Loan Association for the Applicant's personal misadministration of loans regarding the Tallwood Condominiums and the Segars account in the respective sums of $6,340.00 and $4,210.00. "(iv) On or about June, 1977, the Applicant did knowingly and with intent to defraud Metropolitan Mortgage Company, approve payment of a purported brokerage fee to David G. Witherspoon, in the sum of $6,500.00 by check number 11796 dated June 3, 1977, issued by Metropolitan Mortgage Company and drawn on the Flagship National Bank of Miami. The Applicant represented that said payment to Donald G. Witherspoon constituted a share of a brokerage commission for commitments entered into between Metropolitan Mortgage Company and Tremont Savings and Loan Association. On or about June 6, 1977, said check was converted to cashier's check number 070087 drawn on the Flagship National Bank of Miami and made payable to one Donald G. Witherspoon. The primary fee for said transaction was paid to Mortgage Brokerage Services, East Orange, New Jersey. No such brokerage commission sharing agreement between Mortgage Brokerage Services and Donald G. Witherspoon ever existed. Donald G. Witherspoon was never a party to such transaction nor did he ever see, receive or sign said check." Misconduct by the Applicant Subsequent to the August 4, 1978, Order of Denial The Applicant represented himself to Mr. Alan N. Schneider of Kings Way Mortgage Company of Coral Gables, Florida, as being a licensed mortgage broker/solicitor in the State of Florida. From December 22, 1978, until February 23, 1979, the Applicant was employed by Kings Way Mortgage Company as a mortgage solicitor, and did act in the capacity of a mortgage solicitor and negotiated several loans and collected fees. At all times above, the Applicant was not licensed as a mortgage broker and/or solicitor in the State of Florida. That on or about February 1, 1979, the Applicant represented himself as, and acted in the capacity of a mortgage broker and/or solicitor in the State of Florida without being licensed as required by Chapter 494, supra, and in violation of Section 494.04, supra. When the Applicant filed his application at issue here, he failed to indicate, in response to Question No. 7, the existence of a Final Judgment against him in the amount of $1,482.35. Such Judgment was entered against the Applicant in Dade County, Florida, on August 15, 1978, in Case No. 78-7543 SPO5. Competence, Character, and Reputation of the Applicant Applicant has had considerable experience in the field of mortgage banking. The president and vice-president of two mortgage brokerage companies established, without contradiction by the Department, that the Applicant is extremely knowledgeable in the area of mortgage banking. (Testimony of Ruiz, Petitioner's Exhibit No. 1) Should the Applicant qualify for and receive a license, Allan Zalesky, President of First Capital Mortgage Company, and Albert Ruiz, Vice-President of Conley and Jones, a mortgage banking firm, would be willing to consider employing him as a mortgage solicitor. While no evidence was presented to indicate Zalesky was aware of the Applicant's past misconduct, or the basis for the Department's proposed denial of the Applicant's license, Ruiz was generally familiar with the Department's charges against the Applicant. Ruiz, nevertheless, affirmed that, should the Applicant be licensed, he would employ him as a competent mortgage solicitor, not just as a friend. (Testimony of Ruiz, Petitioner's Exhibit 1) The Applicant's reputation in the community, to the extent that it is known by his friend, Luiz, is one of "truthfulness, honesty, and integrity." (Testimony of Ruiz) Extenuating and Mitigating Circumstances Surrounding the Applicant's Misconduct Although the Applicant failed, in response to Question 7, to disclose on his application for licensure the existence of a Final Judgment against him, dated August 16, 1978, the Applicant had previously satisfied the Judgment, on or about November, 1978. Although the Judgment creditor had been paid by the Applicant, a Satisfaction of Judgment was not executed until March 18, 1980. (Testimony of the Applicant, Petitioner's exhibit 2) The Applicant intends to repay Metropolitan Mortgage Company for the losses it suffered due to the Applicant's prior misconduct. While the Applicant has made tentative arrangements to that end, no such payments have yet been made. (Testimony of Applicant) The Applicant admits his past misconduct as a mortgage solicitor as alleged by the Department, and sincerely regrets his actions. His fraudulent conduct, which forms the basis of the Department's previous 1978 Order of Denial, occurred, in part, because he was suffering financial difficulties, and faced mounting medical bills of his wife. He was aware that his continued functioning as a mortgage solicitor, subsequent to that Order denying a license, was unlawful but he felt compelled to do so because of mental and financial difficulties and his physical condition at that time. Further, he was encouraged by his friends at the mortgage company to engage in such activities. (Testimony of Applicant) The Applicant has never before engaged in misconduct in connection with mortgage brokerage transactions. His misconduct caused him embarrassment and great humiliation resulted in mounting family debts, and left him unemployed since February, 1979. His primary knowledge, and skills are limited to the mortgage banking field, and, unless he is able to act as a mortgage solicitor, it will be difficult to pay his debts and support his family. He freely acknowledges, and sincerely regrets his wrongful actions, and genuinely regrets the hardships which his actions have imposed on his family and friends. He professes to understand the value of and need for honesty and integrity in mortgage banking. Insisting that he has learned his lesson, he promises that, if licensed, he will never again engage in misconduct. (Testimony of Applicant)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Applicant's application for licensure as a mortgage solicitor be DENIED, without prejudice to his right to reapply in future years with new and substantially different evidence of rehabilitation. DONE and ORDERED this 30th day of June, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ronald B. Gilbert, Esquire Douglas Centre, Suite 807 2600 Douglas Road Coral Gables, Florida 33134 Franklyn J. Wollettz, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301
The Issue The issue presented for decision herein is whether or not Respondent unlawfully refused to honor a subpoena issued by Petitioner as is more particularly set forth hereinafter in detail.
Findings Of Fact Respondent, ASPEC, Inc., is a Florida Corporation engaged in the business of Mortgage Brokerage in Florida. Shanker S. Agarwal is President of ASPEC, Inc. Mr. Agarwal has been licensed by the Department as a Mortgage Broker since May 24, 1985 and currently holds License No. HB-0016435 which expired, by its terms, August 31, 1986. On February 14, 1986, the Department received a consumer complaint about ASPEC, Inc., and pursuant to its investigation of Respondent's brokerage activities, the Department sent a certified letter to ASPEC, Inc., on March 21, 1986, to the attention of President Agarwal requesting that an appointment be scheduled with its Area Financial Manager, Division of Finance, Paul Richman. The returned service of the referenced letter was postmarked April 14, 1986. President Agarwal, or an officer from Respondent failed to schedule an appointment with Paul Richman as requested. On May 22, 1986, the Department served Respondent a subpoena duces tecum on May 23, 1986, by its then Financial Examiner Analyst I, Kevin J.C. Gonzales. (Petitioner's Exhibit 1, pp 9-10.) The subpoena issued to President Agarwal requested that the custodian of records, an officer, director, employee or member of ASPEC, Inc. appear before Paul Richman on May 30, 1986, at 9:00 a.m. at the Department's Miami Office and produce all books, papers and documents (of ASPEC, Inc.) from its inception to April 29, 1986, so that the Department could determine ASPEC's compliance with Chapter 494, Florida Statutes. President Agarwal, or a representative on behalf of ASPEC, Inc., failed to appear at the date and time specified on the subpoena, or thereafter, at the designated place to produce the requested documents. Respondent has challenged on constitutional and other procedural grounds, the Department's authority to conduct an investigation of Respondent as a licensee under the Mortgage Brokerage Act. Respondent's challenges were determined to be either beyond the authority of the Hearing Officer or lacked merit, and rulings to this effec were made during the course of the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: Petitioner enter a Final Order suspending the Mortgage Brokers License No. HB-0016435 issued to Respondent for a period of (1) year. RECOMMENDED this 8th day of May 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 8th day of May 1987. COPIES FURNISHED: Miles J. Gopman Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399 Mr. Shanker S. Agarwal, President ASPEC, INC 6912 Stirling Road Hollywood, Florida 33024 Ronald P. Glantz, Esquire 320 Southeast 9th Street Fort Lauderdale, Florida 33316 Hon. Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0305 =================================================================
The Issue Whether or not the Respondent, Evers & Associates, Inc. and Dovard J. Evers, its President, a licensed mortgage broker in the State of Florida, has charged and accepted fees and commissions in excess of the maximum allowable fees or commissions on the transactions set forth in the administrative complaint, Exhibit "A," in violation of Sec. 494.08(4), F.S., and thereby subjected the Respondent to a possible suspension under the terms of 494.05(1)(g), F.S.
Findings Of Fact Evers & Associates, Inc. through the parson of Dovard J. Evers, its President, was a licensed mortgage broker in the State of Florida, during the time period contemplated by the administrative complaint. Subsequent to the time of receiving the mortgage brokers-license, Dovard J. Evers, on behalf of Evers & Associates, Inc., entered into an agreement with several other parties to sell notes secured by mortgages on real estate. One of the agreements was with David Edstrom, of a corporation known as S.E.T., Inc., Mr. Edstrom being the President of said corporation, and the location of that corporation being in Fort Lauderdale, Florida. A similar agreement was held with one Gary George of the Mortgage Consultants, Inc., Ocala, Florida. The agreement with Gary George involved a sale of mortgages for the benefit of the mortgagor, Washington Development Corporation. The third such agreement was with Phil Swan of Southeast Florida Corporation. The written conditions of the S.E.T., Inc. arrangement with Mr. Evers can be found in Respondent's Exhibits No. 2 through No. 5. Essentially, the arrangement was to have Mr. Evers, through Evers & Associates, act as a salesman for the benefit of S.E.T., Gary George and Phil Swan. Their agreement envisioned that Mr. Evers would be afforded a percentage discount varying from 14 percent to 16 percent of the amount of a mortgage loan which was a note secured by real estate. In actual , the contact was made between S.E.T., Gary George and Phil Swam Mr. Evers for purposes of placing notes that were for sale. The apparatus worked by having Mr. Evers contact mortgagees/investors who made a check payable to Evers & Associates for the full amount of the mortgage loan, whose price had been quoted by the intermediary; S.E.T., Gary George and Phil Swan. This amount was held in escrow until such time as the note and mortgage which secured the note could be drawn. The executed note and mortgage went directly to the third party mortgagee/investor without ever having the name of Mr. Evers or Evers & Associates, Inc., affixed to such documents. After this note and mortgage had been executed in behalf of the third party investor, Mr. Evers deducted a fee in favor of Evers & Associates, Inc., according to the percentage agreement with S.E.T., Gary George and Phil Swan and sent the balance of the money to S.E.T., Inc.; Washington Development Corporation through the person of Gary George and to Phil Swan of the Southeast Florida Corporation. The arrangement with Washington Development Corporation changed at a later date because Gary George was no longer involved and payments subsequent to his involvement were sent directly to Washington Development Corporation. The facts show that in the transactions found in Petitioner's Exhibit "A," the complaint, charges were made in behalf of Evers & Associates in the person of Mr. Evers which exceed the statutory allowance for fees and commissions in the amount stated in the column entitled overcharges. These overcharges are according to the percentage agreement between Mr. Evers and S.E.I., Inc., Gary George, and Phil Swan, minus adjustments made in behalf of the third party investor/mortgagee, as indicated in the testimony. This finding of facts, excludes the mortgage by M. Berkell which was stipulated between the parties as not being a matter for further consideration in the hearing. There was no evidence offered of the charge, if any, between S.E.T., Inc., Gary George, and Phil Swan in their dealings with their developer/mortgagors. At present the Respondent, Evers & Associates, Inc., and Dovard J. Evers, its President, have failed to renew the license in the current license period and, as of the moment of the hearing, have expressed no further interest in such renewal.
Recommendation It is recommended that the license of Evers & Associates, Inc., by Dovard J Evers, its President, be suspended for a period not to exceed 30 days. DONE and ENTERED this 8th day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Fred O. Drake, III, Esquire Office of the Comptroller The Capitol Tallahassee, Florida 32304 Earl M. Barker, Esquire 218 East Forsythp Street Jacksonville, Florida 32202
