Recommendation Based upon the Findings of Fact and Conclusions of Law stated above the Hearing Officer would recommend that the Florida Real Estate Commission issue a letter of admonition to Leroy Wilson clarifying his responsibilities and the maintenance of his financial affairs and proper business office when operating as a broker. DONE and ORDERED this 22nd day of June, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Henry Latimer, Esquire Mavrides and Latimer 5353 Southwest 40th Avenue Fort Lauderdale, Florida 33314
The Issue Whether Respondent failed to deliver a deposit to the person entitled to said delivery in violation of Section 475.25(1)(c), Florida Statutes. Respondent appeared at the hearing without legal counsel and was advised of his rights to same at his own expense. He elected to represent himself at the hearing. He was further advised as to his rights under the Administrative Procedure Act including the right to testify on his own behalf if he so desired. He indicated his understanding of his rights. It was stipulated by the parties that Joseph Sopotnick, Joseph Sopotnick, Jr., and Joe Sopotnick are one and the same person.
Findings Of Fact At all pertinent times under consideration in these proceedings, Respondent was a registered real estate broker (Stipulation of parties, Exhibit 2) In March 1974, Alvin K. Whittington of Marietta, Georgia, upon the recommendation of his job supervisor, who had dealt with Respondent in the past, called the Respondent on the telephone concerning the possibility of purchasing land in Florida. Although the Respondent indicated that he had none available at that time, he called Whittington later on in the day and told him that he had certain property which was for sale and inquired as to when he could come down to Florida to look it over. Whittington informed him that he did not know when he would be able to visit Florida and Respondent advised him to send a deposit in order to hold the land since there was a contractor interested in the same property. Whittington told him that he did not like the idea of placing a deposit on property that he had not seen and inquired as to whether or not he could secure a return of the deposit if, after he had seen the land he did not wish to purchase it. Respondent told him "That's no problem. You can get your deposit back". He advised him to send the deposit and that he would hold it until he came to Florida. Accordingly, Whittington sent a check for $360.00, dated March 20, 1974, to the Respondent which indicated on its face that it was a "deposit on Fla. shore lots - N.W. corner Needle Palm & 18th". The check was signed by Mrs. Whittington on a joint account with her husband. The sum of $360.00 represented 10 percent of a purchase price of $3600.00. After talking to Whittington, Respondent on March 20 wrote to the owners of the property, advised that a deposit check would be forthcoming and enclosed a standard sales contract for the sellers to execute and return to him. This was accomplished and Respondent then forwarded the contract to the Whittingtons for execution and return which they received on April 1st. Mr. Whittington thereupon called the Respondent and told him that he could not sign the contract without seeing the property. On April 12th, he and his wife went to Florida, met with the Respondent, looked over the lots in question, and informed the Respondent that he would call him the following Monday as to whether or not he wished to make the purchase. On April 15th, Whittington called the Respondent, informed him that he did not wish to purchase the property and requested return of his deposit. Respondent informed him he could not return it and that disposition of the deposit would be a matter to be determined by the seller. Thereafter, on April 19th, Respondent wrote to the Whittingtons informing them that after careful consideration, he intended to treat the matter as a forfeiture of deposit situation, and unless he heard from them to the contrary he would disburse the deposit to the seller under the terms of the contract. However, he stated in the letter that he would apply the full deposit to any purchase that the Whittingtons might thereafter wish to make. After receipt of this letter, Whittington again called the Respondent concerning the situation at which time Respondent informed him that he would try to get 1/3 of the deposit returned if Whittington would send him a letter indicating that he would accept such an amount. Nothing further was heard from the Respondent and the deposit was never refunded (Testimony of Mr. & Mrs. Whittington, Composite Exhibit 1, Exhibits 3, 4). On or about July 2, 1974, Respondent remitted 1/2 of the deposit to sellers and retained 1/2 for himself (Stipulation of parties) Respondent testified that Whittington had insisted he accept the deposit and send the contract to the seller to insure that he would be able to purchase the property, and that the proposed deal was not contingent upon the buyer's satisfaction with the property. He denied telling Whittington he could get his deposit back. He also testified that after the Whittingtons viewed the property in Florida, he asked Whittington about the contract and the latter said that he had not brought it with him but would send it within a few days. That when he thereafter called upon his return to Georgia, he informed Respondent that he did not wish to make the purchase because his wife was about to have a baby. Respondent contended at the hearing that he was never sure that Whittington wanted his deposit back, however, conceded that Composite Exhibit 1f was his letter to the sellers advising that the Whittingtons had requested the return of the deposit. Respondent asserted that it was his impression that if a deposit had been made in good faith, it was proper to consider that there was a binding contract even though the depositor had not signed a sales contract. He further indicated that if he was wrong in this respect he would return the deposit. At no time did the Respondent ever discuss the transaction with the sellers. He was unaware of the provisions of Section 475.25(1)(c), by which a registrant may seek advice from the real estate commission if he entertains, in good faith, doubt concerning his duty to account and deliver a deposit. Respondent has been in the real estate business for twelve years (Testimony of Respondent, Composite Exhibit 1f).
Recommendation That Respondent's registration as a real estate broker be suspended for a period of 60 days. That the period of suspension in excess of 30 days be vacated if the Respondent returns the $350.00 deposit to Mr. & Mrs. Alvin K. Whittington prior to the expiration of the aforesaid period of 30 days from the original date of suspension. DONE and ENTERED this 20th day of February, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact At all pertinent times, respondent Richard L. Faircloth has held a real estate salesman's license, No. SL 0407933, issued by petitioner Department of Professional Regulation, Division of Real Estate, authorizing him to work, since July 16, 1990, as a salesman for Discount Realty-Fla., Inc., a corporate broker in Alachua, Florida, whose "qualifying broker" is respondent's wife, Lise H. Faircloth. Petitioner's Exhibit No. 1. On December 1, 1990, Alvin and Betty J. Wilson came to Mr. Faircloth's office in Alachua to sign a form deposit receipt and purchase and sale agreement, Petitioner's Exhibit No. 2, by which they offered to purchase a house on Northwest 18th Terrace in Gainesville; and they gave Mr. Faircloth five hundred dollars in cash, as earnest money. Mr. Faircloth did not recall at hearing whether he put the money in his pocket at that point, but the money was never deposited in an escrow or trust account. After Mr. and Mrs. Wilson left, Mr. Faircloth communicated their offer by telephone to a representative of the house's owner. The offer was declined. When he telephoned the Wilsons with the news, he asked them to come back to his office. With their return later that day, a conversation lasting about an hour and a half began, at the end of which the Wilsons authorized respondent and his broker to retain the earnest money deposit for use in the event respondent located another house they decided to make an offer to purchase. For the same purpose, Mrs. Wilson later wrote respondent a check in the amount of $1,500, which was duly deposited in the broker's escrow account. Shortly thereafter, respondent drew a check on the escrow account in Mr. Wilson's favor in the amount of $200 (so he could pay an electric bill), but the bank refused to cash it. Funds in the escrow account were insufficient, because the Wilsons' $1,500 check had bounced. Mr. Faircloth also wrote a check the Wilsons used as a deposit when they rented a truck to move into a duplex they rented from him. The deposit check was ultimately returned to respondent, without being cashed. (When the Wilsons moved, respondent regained possession of the dog he had earlier given the Wilsons' son. He was never reimbursed $78 he expended for the care and feeding of this dog, after it had become the Wilsons' property.) The Wilsons paid $450 a month, in advance, while they rented the duplex, and nobody ever asked for a security deposit. When Mrs. Wilson received a check from Beneficial National Bank (who lent money against an anticipated tax refund) in the amount of $1,466, Petitioner's Exhibit No. 5, she endorsed it in favor of respondent or the broker and, as far as the evidence showed, this money was put in escrow (although $200 might have been deducted beforehand.) In any event, respondent transferred $200 to the Wilsons more or less contemporaneously. Altogether, the Wilsons entrusted respondent with $1,776 ($500 + $1466 - $200 = $1,766) for possible use as earnest money. After Mr. and Mrs. Wilson bought a house respondent had shown them in December of 1990, but through another broker's office, without availing themselves of Mr. Faircloth's assistance in closing the transaction, they asked him to return the money they had given him. He gave them a check signed by his wife, drawn on a Discount Realty-Fla., Inc. account in the amount of $1,316, on which was written "return of deposit less 450 00/100 security." Petitioner's Exhibit No. 6. The check was dated April 17, 1991. At hearing, Mr. Faircloth testified that the $1,316 check to the Wilsons represented a $50 overpayment. He conceded that $450 had been improperly deducted from the moneys the Wilsons paid, as a claimed security deposit. But he contended that he and the Wilsons had agreed to a non- refundable, $500 "finder's fee" during their second visit on December 1, 1990. In fact, the Wilsons never agreed to any finder's fee, non-refundable or otherwise. At the time it was received, respondent and his wife gave two receipts for the Wilsons' $500. Each reflected that it was to be deposited as earnest money, and no subsequent writing indicated any different agreement between the parties. As late as April of 1991, respondent's conduct, notably delivery of the $1,316 check to the Wilsons, was inconsistent with the putative agreement about a finder's fee he testified to at hearing.
Recommendation It is, accordingly, RECOMMENDED: That petitioner suspend respondent's license for one year. DONE and ENTERED this 14 day of August, 1992, in Tallahassee, Florida. Copies furnished to: Janine Myrick, Esquire P.O. Box 1900 Orlando, FL 33802 Richard L. Faircloth Post Office Box 1859 Alachua, FL 32615 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14 day of August, 1992. Darlene F. Keller, Division Director Division of Real Estate 400 W. Robinson Street P.O. Box 1900 Orlando, FL 32802-1900
The Issue The issue in this matter is whether Respondents committed the violations alleged in the Administrative Complaints, and, if so, what penalties should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent, Tim Vincent Milianta ("Milianta"), at all times material to this matter, was a licensed title insurance agent subject to the regulatory jurisdiction of Petitioner. Petitioner issued Milianta license number E083154. Milianta is the owner and President of Surf Title ("Surf"), a closing and escrow company. Petitioner issued Surf license number E109661. Surf handles closings all over the State of Florida. Surf has been in business for eight years. Prior to Surf opening, Milianta was a title agent for three years. In October 2008, Charlie Mae Wilder ("Wilder") received a promotional advertisement regarding refinancing her property. Wilder responded to the advertisement and subsequently met Letterman, Manager of Southeast Equity and Lending ("Southeast"), to conduct the refinance. Wilder applied for refinancing of her residence and also requested that the loan be used to pay off some creditors. Letterman helped Wilder with her application. He initiated contact with SEAL Credit1 and had Wilder contract with SEAL Credit to reduce her debt. Wilder provided Letterman a list of creditors she wanted paid off through the refinance. On or about January 9, 2009, Milianta attended Wilder's closing as the settlement agent. The loan number 525210 was processed through First Continental Mortgage. Assurity Financial Services underwrote the loan and provided the closing instructions. Wilder's closing instructions provided that "a condition to the funding of this loan that the following payoffs be made through this closing. Indicate payoffs on the HUD-1 Settlement Statement or provide other satisfactory evidence of payoff." The HUD listed each of Wilder's creditors under the section "additional settlement charges." Each creditor's payoff was also listed as going to SEAL Credit. Wilder signed an acknowledgement at closing that a third party was going to handle her lender required payoffs.2 In addition to the HUD-1 Settlement Statement, Wilder and Milianta also signed a General Acknowledgment document which provided: The undersigned Borrower understands that the Lender has required the payment of specific credit accounts at the time of funding as listed on the HUD. The borrower has contracted with an outside agency for the payment of said accounts and agrees to Hold Harmless Surf Title for disbursal of funds to that agency. Borrower further understands that Surf Title has no affiliation with said contracted agency. The lender approved the HUD with SEAL Credit as the payee. Surf handled the refinancing transaction for loan number 525210 and properly disbursed the actual loan proceeds to the list on the HUD. On January 14, 2009, Surf Title transferred $29,928.00 to SEAL Credit per the HUD. Later, Wilder began to get late fees from creditors who were not paid off. In mid-April or May 2009, Letterman contacted Fragemeno because when he was processing Wilder's second re-finance Letterman discovered that Wilder's credit report still listed two items from the January 9, 2009, closing that were unpaid. Fragameno assured Letterman that the items would show up on Wilder's credit report at any time paid. In 2008, Ama and Rudolph Sauceda ("Saucedas") received a Southeast flyer about refinancing. They responded to the flyer and met with Letterman regarding refinancing their home. After the meeting, the Saucedas decided to refinance their mortgage on their residence and take cash out to consolidate and pay off debts. Mrs. Sauceda met with Letterman several times during the application process. Letterman contacted debt holders on behalf of the Saudedas to negotiate items that had been required by the lender for pay off. Letterman even initiated a contract with SEAL Credit prior to closing to negotiate debts for a lesser amount and help get the Saucedas a higher amount of money in their pocket. On or about September 17, 2008, before closing, Letterman, as a credit counselor, signed a confirmation of settlement on SEAL Credit and Consolidating Services, Inc., stationary for the outstanding balance on Mr. Sauceda's Autobank account in the amount of $2,000, for full payment and to close the account on behalf of the Saucedas.3 SEAL Credit also negotiated and lowered amounts for some of the Saucedas' creditor pay offs. While preparing for the closing, Milianta as the Saucedas' settlement agent relayed any changes from SEAL Credit reductions to the lender by teleconference meetings. During the calls, the lender instructed Milianta to send the changes over with the closing statement, which was ultimately approved. On or about September 18, 2008, Southeast closed on the mortgage for the Saucedas. At the closing, the Saucedas signed the buyer and seller statement listing the creditors that the Saucedas wanted paid off.4 Surf Title served as the title company to disburse the actual loan proceeds for the refinance of the Saucedas' mortgage loan and the pay offs for creditors. Milianta sent out all the payments according to the HUD, which the lender approved. Surf Title cut a check for every creditor that was listed on the HUD. Some of the creditors were obscure and Milianta obtained the mailing addresses for the creditors from the Saucedas' credit report to send the payoffs. Some checks Surf sent to creditors were returned as undeliverable. Milianta placed the returned checks into the file until he could figure out what to do with them. None of the checks returned as undeliverable were items on the title commitment. Milianta double-checked to make sure that there would not be a lien or judgment against the property and that there was clear title after the checks were returned. Milianta contacted both the lender and Mrs. Sauceda5 to inquire what to do about the returned checks. The lender informed Milianta that the returned checks were the borrower's monies since the closing had already taken place. When Milianta asked Mrs. Sauceda what to do with the returned checks, she contacted Letterman about the returned checks and worked out a second contract with SEAL Credit to negotiate the debt for a lesser amount. Ultimately, she directed Milianta to send the money from the returned checks to SEAL Credit. On October 15, 2008, the Saucedas provided Milianta a letter to transfer the returned funds to SEAL Credit for payoff that stated: Thank you for calling me yesterday. Per our conversation, I realize that some creditors were not found or that some of the checks were returned from our refinance closing in September, but instead of returning the money directly to me, please forward the money to SEAL Credit and Consolidation Services. I have contracted SEAL Credit to negotiate the debt listed on my credit report and settle those accounts for minimal amounts.[6] On or about October 16, 2008, Surf followed the Saucedas' instructions and transferred the total returned check amount of $14,621.00 by wire to SEAL Credit to pay the outstanding creditors. On or about November 18, 2008, SEAL Credit confirmed with the Saucedas that the company had successfully negotiated the 15 outstanding creditors down to a payoff settlement that totaled $13,313.00. SEAL Credit then disbursed $1,275.00 to the Saucedas to which they signed a receipt for the monies.7 Months later, Mrs. Sauceda was checking her credit scores and discovered that approximately $14,000.00 had not been paid to her creditors as promised and indicated by SEAL Credit. Mrs. Sauceda contacted Letterman to inquire about the unpaid debt to creditors. Letterman followed up with Fragameno, who assured him that each debt would show up paid on the credit report anytime. Neither the Saucedas' nor Wilder's creditor payoffs were satisfied as promised and agreed to by SEAL Credit. At some point prior to hearing, SEAL Credit closed and discontinued doing business. Both Wilder and the Saucedas suffered financial losses due to the nonpayment of their creditors by SEAL Credit. Letterman tried to help and assist them repeatedly. He ultimately instructed them to file a complaint with the state. After an investigation, Petitioner charged Respondents with numerous violations by separate Administrative Complaints dated March 31, 2011. The Charges: In Count I of the Administrative Complaint filed against Milianta, Petitioner charges Respondents with violations of sections 626.8437(4),(6), and (9); 626.844(2) and (5); 626.9521(1); 626.9541(1)(e)1, Florida Statutes, and rule 69O- 186.008 for the refinancing transaction on behalf of Wilder. In Count II, Petitioner charges Respondents with violations of sections 626.8437(4),(6), and (9); 626.844(2) and (5); 626.9521(1); 626.9541(1)(e)1, Florida Statutes, and rule 69O-186.008 for the refinancing transaction on behalf of the Saucedas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order dismissing the Administrative Complaints against Respondents. DONE AND ENTERED this 31st day of October, 2011, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 31st day of October, 2011.
The Issue Whether either Petitioner is entitled to Unclaimed Property Account Number 108502717.
Findings Of Fact The Department receives unclaimed property and disburses that property from the State of Florida Treasury to the rightful owners. During the last fiscal year, the Department's Bureau of Unclaimed Property received in excess of $300,000,000 of unclaimed property, and paid claims in excess of $212,000,000. The Department has the duty to evaluate the merits of each claim for unclaimed property and to pay only those claimants who can establish, by a preponderance of the evidence, that they are the rightful owners of the unclaimed property. Anja Sova was born in 1921 in Finland, but resided in Lake Worth, Florida. Her husband's brother was married to Iina Sova, who resided in Finland. Anja Sova opened several accounts with different banks during her lifetime; two of those accounts were opened at Washington Mutual Bank, and she designated Iina Sova, her sister-in-law, and Silja Lappalainen, her grand-niece and Iina's granddaughter, as joint pay-on-death beneficiaries. In January 2001, at the age of 79, Anja Sova opened a Certificate of Deposit (CD) account with Sterling Bank, depositing $95,000.00 in the account. The CD designated the pay- on-death beneficiary as Silja Sova. Anja Sova signed the signature card for this CD three times, once right next to the name of the designated beneficiary, Silja Sova. The bank had no other information as to the beneficiary. Anja Sova died in a car accident in 2002. The accounts with Washington Mutual were paid to the designated beneficiaries, her sister-in-law, and her grand-niece. Unclaimed Property Account Number 108502717 consists of the matured Sterling Bank CD, worth $127,031.97, and designates Silja Sova as the pay-on-death beneficiary. It had been held by Sterling Bank until its remittance to the Department as unclaimed property. American Research is a corporate claimant representative, and represents the residual heirs of Anja Sova's estate. Choice Plus is also a corporate claimant representative, and represents Silja Lappalainen, Anja Sova's grand-niece. American Research ran searches through various private, social, and governmental databases in the United States, and found no person named Silja Sova. In 2013, American Research also requested and received an Extract from the Population Information System in Finland. This database was created in 1969. The Extract revealed one person named Silja Sova; that person is a child born in 2009, who lives in Finland. No credible evidence was presented on whether the Extract includes only living persons, or if it also includes deceased persons (persons who were born between 1969 and 2001 and died before November 2013, when the search was done through the Extract). American Research argued that Silja Sova simply does not exist. It is unknown, however, whether Anja Sova's husband had more brothers with the surname Sova, or whether Anja Sova's father-in-law had brothers. The undersigned cannot find, given the scant evidence presented, that Silja Sova does not exist, and never existed, in Finland. American Research also proposed the theory that Anja Sova purposely created a fictitious name when designating Silja Sova as the beneficiary. There was no credible evidence presented to support this theory, either; it was mere speculation. An Order for Subsequent Administration was entered by a probate court in Palm Beach County, Florida, on April 11, 2013. It establishes the residual beneficiaries of Anja Sova's estate, but it does not include Silja Lappalainen, Anja Sova's surviving grand-niece. Choice Plus was also unable to locate a person named Silja Sova, and argued that the CD mistakenly designated the pay-on-death beneficiary as Silja Sova when it should have read Silja Lappalainen, Anja's grand-niece who had also been a beneficiary on the Washington Mutual accounts. Curiously, Choice Plus represents Silja Lappalainen, but did not offer testimony from her at the hearing.1/ Instead, Choice Plus offered into evidence an affidavit from Iina Sova, the deceased's sister-in-law, disclaiming any interest in the account. The affidavit is not found credible or reliable; it is written in a language that the affiant did not speak, there is no indication that a certified translator was present while the statement was being made, and the affidavit is replete with hearsay. Unfortunately, there was no credible evidence presented to support Choice Plus's argument that the designation of Silja Sova as the pay-on-death beneficiary was indeed a mistake that a then 79-year-old great-aunt made. The record is void of any credible evidence which meets the preponderance of the evidence standard, entitling either Petitioner to Unclaimed Property Account Number 108502717.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that American Research and Investigations, Inc.'s claim for Unclaimed Property Account Number 108502717 be DENIED. It is also RECOMMENDED that Choice Plus, LLC's claim for Unclaimed Property Account Number 108502717 be DENIED. DONE AND ENTERED this 18th day of April, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 18th day of April, 2014.
The Issue Whether Respondents violated Sections 475.25(1)(e), (k), Florida Statutes, and Chapter 61J2-14, Florida Administrative Code.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division), is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455 and 475, Florida Statutes. Respondent, Lynda J. Lobsitz (Lobsitz), is and was at all material times to this proceeding licensed as a real estate broker in accordance with Chapter 475, Florida Statutes, having been issued license number 0377747. Respondent, Jaclo, Inc. (Jaclo), is and was at all times material to this proceeding, a licensed real estate brokerage corporation, having been issued license number 0275422. During May 1997, the Division conducted an office inspection and escrow audit of Respondents' real estate office. On the day of the audit, Respondents maintained an escrow account for rental security deposits, which account had an adjusted trust liability of $85,300.89.1 The adjusted bank balance was $85,185.22, resulting in a shortage of $115.67. Respondents prepared bank reconciliation reports for January, February, March, and April 1997 for the rental security deposit account and for the rental escrow account. Attached to each of the reports was the monthly bank statement for the account and period covered in the bank reconciliation report. The bank statements identified the name of the bank, the name of the account, the account number, the account balances and dates. A list of outstanding checks, identifying the outstanding checks by date and number, was attached to each report. The dates used to reconcile the balances were not included in the bank reconciliation reports. For the January 1997 bank reconciliation report for the rental rents deposits account, there was a difference of $7,616.25. Respondents stated on the report that $7,630.00 was for a check which was returned for endorsement. The report further stated that $13.75 had not been located. For the February 1997 bank reconciliation report for the rental rents deposits account, there was a difference of $1,756.75. The report contained an explanation for the difference and the corrective action taken. For the March 1997 bank reconciliation report for the rental rents deposits account, there was a difference of $500 which was explained with the corrective action noted. For the bank reconciliation report for January 1997 for the rental security deposit and account, there was an overage of $531.33. The report stated that the amount had not been located. For the bank reconciliation for the rental security deposit and account for February, 1997, there was an overage of $2,234.33. The report explained that $1,700 was a bank error deposit; $3.00 was sales tax which was to be transferred to rents account; and the remaining $531.33 could not be located. For the bank reconciliation for the rental security deposit and account for March 1997, there was an overage of $31.33. The explanation and corrective action stated on the report was "Bank wire to incorrect account Mushlin will transfer from rents accounts. $531.33 have not located." For the bank reconciliation report dated April 1997 for the rental security account, there was an overage of $531.33 with the explanation of "Have not located difference."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondents violated Sections 475.25(1)(e), Florida Statutes, issuing a reprimand for the Respondents, requiring that Respondent Jaclo, Inc., pay an administrative fine of $100, and requiring that Respondent Lynda J. Lobsitz take a seven-hour broker management course. DONE AND ENTERED this 14th day of July, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1998.
Findings Of Fact The Respondent, Robert Watson, Jr., is a real estate broker-salesman, having been issued license Number 0093690. He resides and has his business in Jacksonville, Florida. On or about September 1, 1978, the Respondent negotiated and drafted a contract for sale of a certain piece of residential real estate, the purchaser for which was one Mr. Lacy Cole. The Respondent was Mr. Cole's broker in that transaction. The Respondent informed Mr. Cole that he would have to pay a two- hundred-dollar deposit as prospective buyer pursuant to the deposit receipt, sales contract agreement drafted by the Respondent. Mr. Cole did not pay the entire two-hundred-dollar deposit, but he did pay the Respondent sixty-five dollars. The closing was held October 20, 1978, at which time Mr. Cole's attorney directed the Respondent to pay Mr. Cole a two-hundred-dollar refund as the contract for sale provided that financing would be through the Veterans Administration and that in such a Veterans Administration sponsored transaction the buyer is precluded from paying closing costs. Mr. Cole cashed the two- hundred-dollar check in good faith and later was informed that the Respondent had stopped payment on it, which resulted in Mr. Cole having to make the check good. The Respondent has failed to recompense Lacy Cole for the sixty-five- dollar deposit he had already paid pursuant to the contract for sale drafted by the Respondent. Mr. Watson has also never repaid the two hundred dollars which Mr. Cole had to expend in order to provide payment on the two-hundred-dollar check on which the Respondent had stopped payment. In response to the Petitioner's demonstration that the Respondent had obligated Mr. Cole for a two-hundred-dollar "binder or closing costs" which he was not obligated to pay under Veterans Administration policy, the Respondent stated that he wrote the contract with the two-hundred-dollar binder with the understanding that Cole would pay a portion of it at the first of each month until it was paid and that he only received a total of sixty-five dollars from Cole. The seller agreed to sell the property to Mr. Cole anyway. The Respondent maintained that he merely told Mr. Cole at the closing that he would write him a two-hundred-dollar check and deliver it to him at closing with the understanding that Cole would deliver it back to him immediately afterward to keep from confusing the attorney." The Respondent, however, failed to refute the showing by the Petitioner that the Respondent attempted to obligate that purchaser to pay two hundred dollars in "closing costs" which he was not legally obligated to pay and for which the seller of the property was responsible in the first place. The Respondent adduced no evidence contrary to that of Petitioner which established that, after being informed by the attorney that Mr. Cole was not responsible for any deposit or closing costs, the Respondent still retained the sixty-five dollars paid him as earnest money by Mr. Cole and, further, that after stopping payment on Cole's refund check, causing Mr. Cole to incur two hundred dollars additional expense for which he was not obligated, the Respondent failed to recompense Cole. There is thus no question that the Respondent misrepresented to his client, Mr. Cole, the obligations and expenses Mr. Cole would have to incur in order to purchase the property and thus, in effect, wrongfully obtained two hundred sixty-five dollars from Mr. Cole. On or about September 16, 1978, Mrs. Joanne Wesley deposited a ten- dollar check with the Respondent as a partial deposit for a down payment on a home. On or about September 20, 1978, she deposited an additional one-hundred- dollar check with the Respondent as further deposit on the same contract for sale and purchase which the Respondent had at that time not yet drafted. The Respondent never made an appropriate deposit of the above referenced checks in his escrow account, but, instead, cashed them for his personal use. On or about October 25, 1978, the contract for sale and purchase was finally drafted by the Respondent. On approximately December 4, 1978, Mrs. Wesley deposited with the Respondent an additional check for eight hundred fifty dollars as the final installment of her deposit money with regard to the proposed purchase of the home. On December 29, 1978, Mrs. Wesley learned that she had failed to qualify for FHA financing with regard to the above-referenced contract and, after looking at another home which was not to her liking offered to her by the Respondent as a "replacement dwelling," finally requested the refund of her total deposit of nine hundred sixty dollars. The Respondent then requested Mrs. Wesley to wait until January 2, 1979, for that refund and on January 2, 1979, tendered to her four hundred dollars cash as partial reimbursement. On January 3, 1979, the Respondent tendered to her an additional three hundred dollars cash and drew and delivered to her his escrow check, post-dated to January 10, 1979, in the amount of two hundred fifty dollars. That escrow account check was returned for insufficient funds. On February 1, 1979, Mrs. Wesley's attorney made demand on the Respondent for payment of the two hundred fifty dollars outstanding, represented by the invalid check. On approximately February 3, 1979, the Respondent ultimately paid the two hundred fifty dollars due Mrs. Wesley. Thus, at that point the Respondent had refunded nine hundred fifty dollars of the nine hundred sixty dollars in deposit money due Mrs. Wesley. The entire refund had become due on December 29, 1978, when it was learned that she could not qualify for FHA financing with regard to the proposed purchase, which qualification for financing was a condition precedent to performance of the contract. In his defense the Respondent stated that he attempted to arrange the purchase of another dwelling for Mrs. Wesley upon learning that she could not qualify for financing on the subject property and that he retained her deposit money in his escrow account for that reason and ultimately repaid it to her, although after over a month's delay. The Respondent contended that he had opened the subject account as a business account when he was doing appraisal work and had not considered it to be an escrow account and "did not know when they switched it over to escrow." The Respondent did acknowledge that he had used this escrow account as his business account and commingled personal and business operating funds in it and made withdrawals from time to time for business and personal reasons. With further regard to the Cole transaction, the Respondent contended that he felt it was customary for a veteran to pay two hundred dollars closing costs and even when he learned the veteran was not obligated to pay closing costs in such a transaction, that he still felt it was "customary as earnest money" even though the seller obviously was obligated to pay closing costs. The Respondent also testified that as of the time of the hearing and for an indeterminant period of tinge before the hearing, he had terminated active practice of real estate brokerage and was mostly performing appraisal work. There is thus no question that the Respondent informed Mr. Cole that he was obligated to pay two hundred dollars "earnest money" or "closing costs" and that his actions forced Mr. Cole to incur the two-hundred-sixty-five dollar expense described above, even after the Respondent was informed by the closing attorney that the purchaser was not obligated for those expenses. There is no question with regard to the Wesley transaction that he delayed an inordinate amount of time in refunding her deposit money after the condition of financial qualification for the purchase did not occur, and, further, that he commingled these purchaser deposit funds in his escrow account with personal and business funds and used a portion of them for personal purposes.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED that the license of Robert Watson, Jr., as a real estate broker in the State of Florida be REVOKED. DONE AND ENTERED this 1st day of February, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February 1982. COPIES FURNISHED: Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Robert Watson, Jr. 9527 Abedare Avenue Jacksonville, Florida 32208 Frederick B. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact In early July, 1972, Donald R. and Pamela S. Leininger (buyer) entered into a contract to purchase a residence through Sun Up Realty with its salesman, Bernard Zapel. The real property involved and Sun Up Realty were owned by Defendant, Norman N. Zipkin either as sole proprietor or as sole shareholder of the corporation in whose name the property was held. Disclosure of the role of Defendant as owner-seller was not an issue in these proceedings. Buyer executed two contracts for the purchase of the property both dated July 9, 1972. The first contract acknowledged receipt of $100 as a deposit with a down payment to be made of $1750 with the buyer obtaining a mortgage of $33,250. Noted on this contract are two additional payments of $650 and $1,000. All of these deposits were payable to and deposited in Sun Up Realty's Escrow Account. The second deposit receipt contract was also dated July 9, 1972 and receipt of $1750 was thereon acknowledged by seller. The sale price of $35,000 applied to both contracts. The second contract provided as terms and conditions of sale that the buyer would make an additional deposit of $1700 before closing and that buyer was to apply for, qualify, and obtain a mortgage insured by FHA. Papers to so qualify were sent to the bank but buyer never qualified for the loan. The Administrative Complaint indicates that the first document executed by the buyer provided for an FHA insured mortgage; the evidence presented was as noted above. Apparently to allow buyer additional time to qualify for the loan Defendant leased the premises to buyer pursuant to lease agreement (Exhibit 5). Although Defendant testified buyer paid him nothing while he occupied the house pursuant to this lease agreement, in his deposition (Exhibit 1) buyer presented a receipt for one month's rent paid to the seller for the premises. Buyer never qualified for the mortgage because the lending agency was never satisfied from whence the additional $1700 down payment was to come. Although no evidence was presented on this point it appears that this additional deposit was required for buyer to reach a 10 percent down payment on the price of the residence. The July 9, 1972 deposit receipt contract that was in effect with respect to this transaction provides in pertinent part: "2. An additional sum of seventeen hundred dollars ($1700) shall be deposited with Escrow Agent before closing. In the event such sum is not so deposited, Seller at his option may cancel and terminate this agreement." "3. Buyer to apply for, qualify for, and obtain a Mortgage insured by the FHA Section in an amount not less than $31,550. In the event the Buyer fails to qualify for said mortgage, all said deposit shall be returned immediately, less the cost of the credit report. "14. It is mutually agreed that the trans action shall be closed and the Buyer shall pay the balance of the first payment and execute any and all papers necessary to be executed by him for the completion of this purchase within days from the aforementioned abstract of title, or such time as shall reasonably be required by seller to make such title good, otherwise the herein named Escrow Agent is hereby directed by both Seller and Buyer to divide the monies being held by said Escrow Agent, under the terms under this Contract between the Seller and Broker herein named as hereinafter provided." "It is further agreed that in case of default by the Buyers, the Seller may at his option take legal action at law and/or in equity to enforce this Contract, in which event, the Buyer shall pay reasonable attorney fees and court costs; or else the Seller may at his option retain one half of the deposit herein paid as considera tion for the release of the Buyer by the Seller from any and all further obligations under this Contract to the Seller, which release shall be implied from such act of retention by the Seller." Buyer quit the premises in October, 1972 and thereafter demanded return of his deposit from seller. By letter from buyer's attorney (Exhibit 6) dated March 19, 1973 demand was made for return of the deposit. By letter dated March 23, 1973 (Exhibit 7) Seller denied the refund of the deposit on grounds that the buyer had breached the contract as the Buyer had qualified for and been approved for a mortgage by the Collateral Mortgage Co. The money was withdrawn from the escrow account and paid to the seller. Defendant is an attorney, mortgage broker, general contractor, developer and real estate broker. For the past decade he has devoted most of his energies toward real estate development. This is the first time charges have been preferred against him by the Florida Real Estate Commission.
The Issue Whether Respondent is guilty of fraud, misrepresentation, concealment, false pretenses, false promises, dishonest dealing, culpable negligence, or breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes (1993).
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0267809. The last license issued was as a broker trading as “Trendsetter Realty and Mortgage”, 977 Humphrey Boulevard, Deltona, Florida 32738. The Respondent operated as a real estate broker during the relevant time period of approximately June 1993 through July 1995. The Respondent is not licensed to practice law in the State of Florida or any state. On or about June 18, 1993, the Respondent prepared certain documents in connection with the sale and purchase of real property located at 1847 North Acadian Drive, Deltona, Volusia County, Florida. Respondent prepared the contract based upon the offer made by the buyer, Juan and Susana C. Veliz, and the counteroffer made by the seller, Jerry and Tammy Maltempi, and in accordance with the wishes of buyer and seller. The subject property was encumbered by a first Mortgage, which secured a Note held by J.I. Kislak Mortgage Corporation and guaranteed by the federal Department of Veterans Affairs. The mortgage and note contained a “due on sale” clause and clearly stated on its face that “[t]his loan is not assumable without the approval of the Department of Veterans Affairs or its authorized agent.” The Buyers and the Sellers were aware of this restriction at the time of the transfer of possession. The Buyers executed an initial, handwritten, offer that specifically stated in bold, capitalized print that "if not fully understood, seek the advice of an attorney prior to signing.” The Buyers then received a typed counteroffer, as opposed to the handwritten original offer, which also stated the same admonition to seek advice of an attorney. The counteroffer was mailed to the Buyers for review and execution by Mr. Veliz and his wife. The Buyers read the numbers, but not the fine print, prior to signing the contract. The sale document was executed by the Buyers and Sellers on or about June 18, 1993 and was denominated a Contract for Deed with a sale price of $85,000. The contract provided for a $1,000 initial deposit, followed by a second deposit of $8,783.50 which was due upon acceptance by the Sellers. The transfer of title was to occur on or before July 6, 1995. Upon payment of the full deposit, the Sellers would transfer possession to the Buyers and the escrowed funds (except for $1,200) would be disbursed. Buyers would assume the responsibility of repair and maintenance of the property upon taking possession. On or about July 3, 1993, Buyers tendered the sum of $9,783.50 to the Respondent and assumed possession of the property. Respondent explained to the Buyers about the agency relationship and her representation of the Sellers; that she owed a duty of fair dealing and honesty to the Buyers; the risks associated with an agreement for deed; the foreclosure status of the property the Buyer’s were purchasing; and the fact that the deposits were non-refundable after occupancy of the premises. Respondent disclosed the nature of her agency relationship, both orally and in writing, to both the Buyers and the Sellers in the transaction at issue. Respondent disclosed, in writing, to the Buyers that deposits being made by the buyer were non-refundable upon occupancy of the premises. At the hearing, Mr. Veliz demonstrated his ability to speak, read and understand the English language. The Buyers had ample opportunity to seek independent representation, either through a realtor or through an attorney prior to signing the contract and prior to taking possession of the premises. The Buyers chose not to do so. Prior to Buyers taking possession of the home, Respondent, via telephone conversation, described this transaction to J.I. Kislak Mortgage Corporation, the holder of the note and mortgage on the property, and advised them that a sale was pending and the past due mortgage payments would be brought up to date. Between July 9 and 12, 1993, with the consent of the parties, the Respondent disbursed: $2,962 to herself, as a real estate commission; $2,857.12 to the sellers; and $2,759.38 to J. I. Kislak Mortgage Corporation for payment on the mortgage. Respondent retained $1,200 in escrow for future closing costs. As a service to the parties, Respondent collected the monthly mortgage payment from the Buyer and forwarded it directly to the mortgage holder for several months. Buyers paid the agreed upon amount of $657.00 per month from August 1993 until May or June 1994. In June 1994, J.I. Kislak Mortgage Corporation refused to accept any additional payments toward the mortgage until an adjustment was made in the escrow account for the payment of insurance premiums on the property. The mortgage company called for an upward adjustment in the approximate amount of two hundred dollars per month. Neither the Buyers nor the Sellers were willing or able to pay the additional premium amount. The mortgage corporation subsequently foreclosed and took possession of the property during the last half of 1994. Buyers lost their equity in the house including approximately eight thousand dollars in improvements to the property. Following the foreclosure, Respondent disbursed the balance remaining in her company’s escrow account to the Buyers, in the amount of $1,205, on or about September 22, 1995. Respondent prepared an agreement or contract for deed which a broker is not authorized to prepare. Respondent failed to anticipate a possible increase in the mortgage payment escrow for taxes and insurance at the time the original contract was prepared. The failure of the transaction to close, and the losses suffered by the parties, were not due to a calling of the loan by the mortgage company pursuant to the due on transfer clause of the mortgage. The failure of the transaction to close was not due to the non-refundability of the deposits made by the Buyers. There was no intent on the part of Respondent to commit fraud, misrepresentation, concealment, false promise, false pretense, dishonest dealing or breach of trust in this matter. Respondent is guilty of culpable negligence in this matter.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission, enter a final order finding Respondent Not guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing or breach of trust in a business transaction. Guilty of culpable negligence, in violation of Section 475.25(1)(b) Florida Statutes, and impose an administrative fine in the amount of $1,000 and suspend Respondent’s license for a period of three months. RECOMMENDED this 30th day of January, 1997, at Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1997. COPIES FURNISHED: Steven D. Fieldman Chief Attorney, Real Estate Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32808 Wade F. Johnson, Jr. Esquire Wade F. Johnson, Jr., P.A. 118 East Jefferson Street Orlando, Florida 32801 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
