The Issue There were originally three counts in the Administrative Complaint. Count II was dismissed by the Petitioner Board at the beginning of the hearing. Count I alleges that the Respondents failed to refund a fee as required by the contract and the statutes; and Count III alleges that Respondents employed unlicensed persons as sales personnel. Based upon the stipulation of the parties, the primary issue in Count I was whether the Respondents refused the refund in bad faith or under color of some right to the fee. The issue in Count III was whether the activities engaged in by the unlicensed persons were regulated activities.
Findings Of Fact Count I Sav-On Rentals, Inc. (Sav-On), is a licensed corporate real estate broker located in Orlando, Florida, holding License #211231. Carl Stuart Courtney is the active broker for Sav-On and holds Licenses #0211232 and #0017643. Both Respondents were licensed at all times pertinent to the allegations in the Administrative Complaint. Susan Young and A. J. Stephens went to Sav-On on July 18, 1980, seeking information on renting a house. They executed a contract with Sav-On, paid the required $40 fee, and were given data on houses for rent. The contract contains the following pertinent language: . . .Notice: Pursuant to Florida Law: If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of your full fee paid. If you do not obtain rental information you are entitled to receive a return of 75 percent of the fee paid, if you make demand within 30 days of this contract date. . . That night Young and Stephens changed their minds about renting a house. The next day they called Sav-On and requested a refund of their fee. Young rented an apartment from an apartment complex. On August 14, 1980, Stephens prepared the written refund request at Sav-On. Sav-On had a listing for the sublease of an apartment in the same complex in which Young rented her apartment. There is no evidence that Sav-On gave Young or Stephens any information on that sublease, or that Young rented her apartment based on her contact with Sav-On. Sav-On denied the refund on the basis that Young had leased a property available through Sav-On. As of the date of the hearing, Young and Stephens had not received a refund. Count II Christopher LaFrance, a licensed real estate salesman, was one of the first licensees hired by Sav-On Rentals, Inc., after its incorporation in July of 1979. He was employed until January, 1980. When LaFrance was first hired, there were several unlicensed clinical staff employed by Sav-On. These employees were holdovers from Sav-On's non- licensed business. One of the unlicensed persons, Dawn (last name not stated), was responsible for telephone service to persons already registered. She provided additional listings to persons already registered with Sav-On. Another of the unlicensed persons was Stephanie (last name not stated), who was a verifier. She called listings to determine if they were unrented and still available. Stephanie and Dawn were not licensed at the times in question. Between July of 1979, and January, 1980, these unlicensed personnel were gradually replaced by licensed persons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and considering the facts in mitigation, the Hearing Officer recommends that the Respondent, Carl Stuart Courtney, receive a letter of reprimand for violation of Section 475.25(1)(d), Florida Statutes; and that the Respondent, Sav-On Rentals, Inc., be placed on probation for a period of six months for the violation of Section 475.25(1)(d), Florida Statutes. DONE and ORDERED this 15th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 15th day of March, 1982. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ronald W. Brooks, Esquire 338-D North Magnolia Avenue Orlando, Florida 32801 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue At issue is whether Respondent committed the violations set forth in the Administrative Complaint dated October 17, 2002, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency responsible for the regulation and discipline of real estate licensees in Florida pursuant to Section 20.125, Florida Statutes (2000). At all times material to this case, Respondent is a licensed real estate broker and holds license number 0349967. In the summer of 2001, Jose Diaz (Diaz) met Saldana at a seminar. The seminar was aimed at persons seeking to participate in federally financed programs designed to assist them in financing home purchases. At the seminar, Diaz was referred to Saldana and described as a person who could assist Diaz in finding a home which could be financed with government funds. Diaz sought Saldana's help in good faith, but Saldana abused Diaz' trust and took advantage of his lack of sophistication in the field of real estate. Specifically, Saldana told Diaz that in order to be eligible for a government financed loan, it would be necessary to pay off certain of Diaz' debts. Saldana instructed Diaz to provide him with blank money orders and represented to Diaz that the money orders would be used by Saldana to pay off the debts so as to facilitate Diaz' receiving a government loan. Saldana failed to deposit the funds with his broker or in an escrow account, and failed to use them for the purposes for which they were intended, that is, to pay off Diaz' debts in order to satisfy government requirements for loaning Diaz funds toward a home purchase. Instead, Saldana converted the funds to his own use. Diaz sued Saldana for civil theft in Palm Beach County Court. On June 19, 2002, a final judgment was entered in Diaz' favor for the full amount of the funds converted, plus interest. As of the date of the final hearing, Saldana had failed to satisfy Diaz' judgment, and had no plans to do so. In early 2001, Rafael Alcocer (Alcocer) met Saldana in a social club and asked him to assist him and his wife in purchasing a home. Saldana agreed, but did little on Alcocer's behalf. Eventually, Alcocer found a home he liked and asked Saldana to present an offer to the homeowner, Diane Dorish (Dorish). Dorish accepted the offer, which included a $500 deposit. However, Saldana falsely told Alcocer that Dorish required a $2,500 deposit, and obtained funds in that amount which Alcocer thought would be used for a deposit required by the homeowner. In fact, Saldana converted those funds to his personal use, although Alcocer was eventually able to recoup $1,500. In addition, Saldana forged Alcocer's signature on a contract which provided for additional terms which had not been authorized by either Alcocer or Dorish. The Division also charged Saldana with collecting a $320 mortgage application fee, plus a $1,000 earnest money deposit from a third client. The Administrative Complaint alleges that Saldana failed to deposit these funds into a trust or escrow account, but instead converted the funds to his own use. However, no evidence was presented in connection with this transaction, and it has not been considered in the disposition of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order revoking Respondent’s real estate license. DONE AND ENTERED this 24th day of April, 2003, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS 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 24th day of April, 2003. COPIES FURNISHED: Lorenzo Level, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N308 Orlando, Florida 32801-1900 Enrique Saldana 7560 Gilmour Court Lake Worth, Florida 33467 Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802N Orlando, Florida 32801-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether either of the Petitioners is entitled to the funds in Unclaimed Property Account Number 117786622.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: The Department is the state agency authorized to administer the Florida Disposition of Unclaimed Property Act, chapter 717, Florida Statutes. In that capacity, the Department, as custodian, receives dormant accounts from various entities and safeguards the funds until the rightful owner files a claim establishing his or her entitlement to the funds. In 2013, the Department received $273,100 from Amco Insurance Company (“Amco”), a subsidiary of Nationwide Insurance Company (“Nationwide”). Amco reported the funds as the proceeds of a Matured Life-Limiting Age insurance policy payable to the “Estate of Larry Bunda” and “Home Q Servicing” (hereinafter cited as “HomEq,” the company’s preferred name styling). Amco also provided a last known address for HomEq of Post Office Box 57621, Jacksonville, Florida 32241, as an additional property identifier. The funds are now identified as Unclaimed Property Account Number 117786622. Global is registered with the Department as a claimant’s representative pursuant to section 717.1400, Florida Statutes, which permits it to file claims with the Department on behalf of apparent owners. In 2015, Global began investigating account number 117786622. In an email dated July 13, 2015, Nationwide reported to Bonnie McKee-Flores of Global that the customer in question was named Larry R. Bunda, born on October 19, 1950, with a reported address of 546 Elm Street, Ramona, California. Global investigated the status of Larry R. Bunda. It obtained a Washington State Certificate of Death indicating that Larry R. Bunda died on September 8, 2008, in Seattle, Washington, of injuries sustained in a motorcycle accident. Global discovered three heirs to the estate of Larry R. Bunda: Amelia Bunda of Bremerton, Washington; Robert Bunda of Bremerton, Washington; and George Bunda of El Cajon, California. On September 13, 2016, Ms. McKee-Flores of Global sent an email to Nationwide requesting the issue date and check number of the check issued to Larry Bunda and HomEq Servicing. Ms. McKee-Flores explained that she was attempting to obtain a release from HomEq’s successor, Ocwen, for the funds to be released to the Bunda estate, and that the information as to the check would help persuade Ocwen to sign the release. Nationwide responded: “The original check # was 0371843635 and it was issued on 11/05/2009.” Nationwide did not state to whom the check was made payable. The three heirs initiated a probate proceeding in the Circuit Court for the Second Judicial Circuit, in and for Leon County, Florida, Case No. 2016 CP 000687. On September 22, 2016, the court entered an Order of Summary Administration adjudging that there be an “immediate distribution of the assets of the decedent” equally to each of the heirs. Each heir was to receive a “one-third (1/3) share of decedent’s share” of the Department’s Unclaimed Property Account Number 117786622. On October 17, 2016, Global filed with the Department a claim on behalf of the Bunda heirs, claiming 50 percent of the funds in account number 117786622, with HomEq (or its successor) entitled to the other 50 percent as the joint named payee on the life insurance policy. The Global claim was filed on Department Form DFS-UP- 108, which is the form prescribed by Florida Administrative Code Rule 69G-20.0021(6) for claims filed by a claimant’s representative. There is no dispute that Global used the correct form to file its claim. On December 19, 2016, Ocwen filed its claim to the “Matured Life--Limiting Age” policy issued by Amco to the “Estate of Larry Bunda” and “Home Q Servicing.” Ocwen claimed the funds as the successor company to HomEq. The Ocwen claim was filed on Department Form DFS-UP- 106, which is the form prescribed by rule 69G-20.0021(4) for claims filed directly by apparent owners, including corporations. At some point after the claims were filed, the Department made further inquiry to Nationwide as to the nature and status of the insurance policy. In an email dated January 30, 2017, Jenn Hupp, a Nationwide premium processor, reported to Department regulatory specialist Tiffani Ealy Claven as follows: “I show that check 378366435 was issued on claim 84M85897 date of loss 10/22/2007. In payment of: POLICY LIMITS FOR DWELLING LOST IN FIRE-- REISSUE OF CK 378364049.” Ms. Hupp did not provide a date for either of the referenced checks, nor did she expressly state to whom they were made payable. Neither check number referenced by Ms. Hupp matched the check number that Nationwide provided to Global on September 13, 2016. None of the referenced checks were made part of the record. The actual policy document was provided to the Department by Nationwide no sooner than October 31, 2017.2/ The Department did not make Global aware that it had the policy document until November 14, 2017, when Global filed a written motion seeking to exclude the policy on grounds of inadequate notice. After hearing argument at the final hearing, the undersigned overruled Global’s objection and admitted the policy. The policy was not a life insurance policy but a homeowner’s policy, number HMC 0009452948-6, issued by Allied Property and Casualty Insurance Company (“Allied Property”), another subsidiary of Nationwide, for the period running from May 6, 2007, to May 6, 2008. The face value of the insurance policy was $273,100 for a dwelling, and included additional coverages for other structures, personal property, and personal liability. The policy declarations page identified Larry R. Bunda of 546 Elm Street, Ramona, California, as the named insured. The policy declarations page identified 546 Elm Street, Ramona, California, as the insured property. The policy identified HomEq as the mortgage loss payee on the first mortgage. HomEq’s address was listed as Post Office Box 57621, Jacksonville, Florida 32241-7621. Nothing in the record explains why Nationwide originally reported the policy to the Department as a life insurance policy, or why it was reported by Nationwide’s Amco subsidiary rather than by Allied Property, the issuer of the policy. In support of its claim, Ocwen submitted a copy of a Deed of Trust, dated October 5, 2005, relating to the property located at 546 Elm Street, Ramona, California. The Deed of Trust identifies Larry R. Bunda as the purchaser/borrower, BNC Mortgage, Inc., as the lender, and TD Service Company as the trustee. The Deed of Trust identifies Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary, “acting solely as a nominee for Lender and Lender’s successors and assigns.” The Deed of Trust reflects a purchase price of $495,000. The Deed of Trust, in the Uniform Covenants, at paragraph 5, requires Mr. Bunda to insure the property against fire, flood, and other hazards, and further states: All insurance policies required by Lender . . . shall include a standard mortgage clause, and shall name Lender as mortgagee and/or as an additional loss payee and Borrower further agrees to generally assign rights to the insurance proceeds to the holder of the Note up to the amount of the outstanding loan balance. If Mr. Bunda failed to purchase the insurance, then the lender, through its servicing agent, had the authority to purchase insurance at Mr. Bunda’s expense. In the event of loss, insurance proceeds were to be applied to restoration or repair of the property. If restoration or repair were “not economically feasible or Lender’s security would be lessened,” the insurance proceeds would be applied to the amounts secured by the Deed of Trust, with any excess paid to the borrower, Mr. Bunda. Ocwen also provided an Assignment of Deed of Trust, dated August 10, 2011, that specifically identifies 546 Elm Street, Ramona, California, as the subject property. In the Assignment of Deed of Trust, MERS, as nominee for BNC Mortgage, Inc., assigns its rights under the Deed of Trust to U.S. Bank National Association (“U.S. Bank”), as “Trustee under Securitization Servicing Agreement Dated as of December 1, 2005 Structured Asset Investment Loan Trust Mortgage Pass-Through Certificates, Series 2005-11” (the “Securitization Servicing Agreement”). U.S. Bank’s address is listed as c/o Ocwen Loan Servicing, LLC, at Ocwen’s West Palm Beach, Florida, office. The Assignment of Deed of Trust was recorded at the San Diego County Recorder’s Office on August 25, 2011. Ocwen submitted a copy of a Substitution of Trustee, dated March 3, 2011, in which MERS, as nominee for U.S. Bank, and “as trustee for the Securitization Servicing Agreement,” substitutes Western Progressive, LLC (“Western Progressive”), as trustee under the Deed of Trust, in place of TD Service Company, the original trustee. The Substitution of Trustee was not recorded in the San Diego County Recorder’s Office until July 12, 2011. In its preliminary decision, the Department accepted that the Deed of Trust on 546 Elm Street, Ramona, California, was included in the Securitization Servicing Agreement, the first mention of which in the record is in the Substitution of Trustee dated March 3, 2011. Ocwen submitted a Limited Power of Attorney, dated June 1, 2012, listing the Securitization Servicing Agreement among those items over which U.S. Bank granted Ocwen a limited power of attorney. The Assignment of Deed of Trust also names the Securitization Servicing Agreement, implying a connection to the Deed of Trust on the Bunda mortgage. However, the Securitization Servicing Agreement itself is not part of the record in this case. The Assignment of Deed of Trust certainly assumes that the Bunda mortgage is part of the Securitization Servicing Agreement, but there is no document establishing that fact. The failure to tie the Bunda mortgage to the Securitization Servicing Agreement would not affect the assignment of rights from BNC Mortgage to U.S. Bank, or the substitution of trustee from TD Service Company to Western Progressive, because both of those documents are executed in direct reference to the Deed of Trust on the Bunda property. However, the Limited Power of Attorney from U.S. Bank to Ocwen references only the Securitization Servicing Agreement. There is no record evidence directly establishing that Ocwen’s limited power of attorney includes the Deed of Trust on the Bunda property. It appears that the Department was willing to infer that the Deed of Trust is included in the Securitization Servicing Agreement based on the indirect evidence of the Assignment of Deed of Trust and the Substitution of Trustee. Ocwen submitted a U.S. Securities and Exchange Commission Form 8-K filed by Ocwen Financial Corporation, dated September 8, 2010, detailing Ocwen Financial Corporation’s acquisition of “HomEq Servicing,” through its subsidiary Ocwen Loan Servicing, LLC (the “Ocwen” referenced throughout this Order), effective September 1, 2010. The acquisition includes the “mortgage servicing rights and associated servicer advances” of HomEq. In the Form 8-K, HomEq is identified as “the U.S. non-prime mortgage servicing business” owned by Barclays Bank PLC, a British company, and Barclays Capital Real Estate Inc., a Delaware corporation. Florida Division of Corporations documents identify HomEq Servicing as a fictitious name registered by Barclays Capital Real Estate, Inc., on August 29, 2006. The registration was canceled on October 27, 2010. Ocwen submitted a series of notices sent to Larry R. Bunda at 546 Elm Street, Ramona, California, giving notice of transfers of loan servicers. In a notice dated January 27, 2006, HomEq informed Mr. Bunda that the servicing of his account was being transferred from Option One to HomEq, effective February 1, 2006. HomEq sent another notice, dated August 11, 2010, addressed to Larry R. Bunda at 1306 Poindexter Avenue West, Bremerton, Washington 98312-4333. By this time, Mr. Bunda had been dead for almost two years. The address is the same as that given by Mr. Bunda’s heir, Robert Bunda, in the claim documents filed by Global. It is also the address given for “Rob Bunda” as the decedent’s son on Larry R. Bunda’s death certificate. Nothing in the record of this case indicates how HomEq came by this address for Larry R. Bunda in 2010. The August 11, 2010, notice was intended to inform Mr. Bunda that HomEq was transferring the servicing of his account to Ocwen, as of September 1, 2010. This is consistent with Ocwen’s Form 8-K, which stated that Ocwen was acquiring HomEq, effective September 1, 2010. Ocwen submitted a Notice of Default and Election to Sell Under Deed of Trust (“Notice of Default”), dated February 17, 2011, over the signature of Marco Marquez. Mr. Marquez’ position is unclear, as the signature line includes both “Western Progressive, LLC, as agent for beneficiary” and “By LSI Title Company, As Agent.” The relationship of LSI Title Company to this case is unexplained in the record. The document indicates that it was recorded in the San Diego County Recorder’s Office on February 18, 2011. The date on the Notice of Default is prior to the appointment of Western Progressive as trustee by the Substitution of Trustee document dated March 3, 2011. The source of Western Progressive’s authority to do anything regarding the property as of February 17, 2011, is unexplained in the record. The Notice of Default does not state to whom it is addressed. By February 17, 2011, Larry R. Bunda was long dead, but the document includes no acknowledgement of his death or of any effort to locate his heirs. The text of the document repeatedly refers to “your property,” states that “you are behind in your payments” and advises “you” how to obtain a written itemization of the amount “you must pay.” Nothing in the document gives any indication that the “you” being addressed is anyone other than Larry R. Bunda, the borrower, who was dead. The Notice of Default offers the recipient an opportunity to bring the account into good standing by paying all past due payments, stated as $121,831.17 as of February 17, 2011. The Notice of Default goes on to provide: NOTICE IS HEREBY GIVEN: That Western Progressive, LLC is either the original trustee, the duly appointed substituted trustee, or acting as agent for the trustee or beneficiary under a Deed of Trust dated 10/5/2005, executed by LARRY R. BUNDA, A WIDOWER, as Trustor, to secure certain obligations in favor of BNC MORTGAGE, INC., A DELAWARE CORPORATION A CORPORATION [sic], AS LENDER, Mortgage Electronic Registration Systems, Inc., as beneficiary, recorded 10/12/2005, as Instrument No. 2005-0881960, in Book , Page , and rerecorded on as of Official Records in the Office of the Recorder of San Diego County, California describing land therein as: As more particularly described on said Deed of Trust. The subject obligation includes ONE NOTE(S) FOR THE ORIGINAL sum of $495,000.00. A breach of, and default in, the obligations for which such Deed of Trust is security has occurred in that payment has not been made of the following: Installment of Principal and Interest plus impounds and/or advances which became due on 9/1/2008 plus late charges, and all subsequent installments of principal, interest, balloon payments, plus impounds and/or advances and late charges that became payable. You are responsible to pay all payments and charges due under the terms and conditions of the loan documents which come due subsequent to the date of this notice, including, but not limited to, foreclosure trustee fees and costs, advances and late charges. Furthermore, as a condition to bring your account in good standing, you must provide the undersigned with written proof that you are not in default on any senior encumbrance and provide proof of insurance. Nothing in this notice of default should be construed as a waiver of any fees owing to the beneficiary under the deed of trust, pursuant to the terms and provisions of the loan documents. Again, the statements addressed to “you” do not appear to reference anyone other than the borrower, Larry R. Bunda, who was dead well before the Notice of Default was issued. In fact, Mr. Bunda was dead before the due date cited by the Notice of Default. Also, the assertion that Western Progressive “is either the original trustee, the duly appointed substituted trustee, or acting as agent for the trustee or beneficiary under a Deed of Trust dated 10/5/2005, executed by LARRY R. BUNDA, A WIDOWER, as Trustor, to secure certain obligations in favor of BNC MORTGAGE” was not true as of February 17, 2011, at least insofar as the record evidence of this case indicates. Western Progressive was not substituted as trustee until March 3, 2011.3/ The Notice of Default concludes with the following statements: The mortgagee, beneficiary, or authorized agent has fulfilled its obligation under California Civil Code Section 2923.5(a) by contacting the borrower either in person or by telephone to assess the borrower’s financial situation and explore options to avoid foreclosure prior to 30 days of filing the Notice of Default. The borrower was advised of their right to a subsequent meeting within 14 days of the initial contact. In addition, the borrower was provided with the toll-free telephone number made available by the United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing counseling agency. The quoted statements cannot be true. Neither the mortgagee, nor the beneficiary, nor any authorized agent contacted the borrower, Larry R. Bunda, either in person or by telephone, because Larry R. Bunda was dead. The borrower was not advised of his right to a subsequent meeting, nor was he provided with a toll-free HUD number, because he was dead. The record is bereft of information as to the legal effect under California law of falsely attesting to having provided the notice apparently required by the cited provision of that state’s civil code, or of failure to provide notice to the actual, living parties in interest. Unsurprisingly, the borrower did not respond to the Notice of Default and the property proceeded to a trustee’s sale. Ocwen submitted a Notice of Trustee’s Sale, dated July 8, 2011, and recorded in the San Diego County Recorder’s Office on July 12, 2011. This document is signed by Robin Pape, Trustee Sales Assistant, on behalf of Western Progressive, as trustee. The Notice of Trustee’s Sale begins as follows: YOU ARE IN DEFAULT UNDER A DEED OF TRUST DATED 10/5/2005. UNLESS YOU TAKE ACTION TO PROTECT YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE. IF YOU NEED AN EXPLANATION OF THE NATURE OF THE PROCEEDING AGAINST YOU, YOU SHOULD CONTACT A LAWYER. Nothing in the Notice of Trustee’s Sale gives any indication that it is addressed to anyone other than Larry R. Bunda, who remained dead on July 8, 2011. The Notice of Trustee’s Sale informs the recipient that the trustee’s public auction sale will occur on August 8, 2011, at the South entrance to the County Courthouse, 220 West Broadway, San Diego, California. It lists the street address of the property as 546 Elm Street, Ramona, California 92065, and states that the amount of the unpaid balance and other charges is $610,258.23. Finally, Ocwen submitted a Trustee’s Deed Upon Sale, dated September 20, 2011, and recorded at the San Diego County Recorder’s Office on September 29, 2011. The document states that Western Progressive, as Trustee under the Deed of Trust, “does hereby GRANT and CONVEY to Matthew D. Parker, a named man as his sole and separate property . . . all right title and interest conveyed to and now held by it as Trustee under the Deed of Trust in and to the property situated in the county of San Diego, State of California, described as follows ” There follows a legal description matching the Bunda property at 546 Elm Street, Ramona, California. The Trustee’s Deed Upon Sale also provides as follows: This conveyance is made in compliance with the terms and provisions of the Deed of Trust executed by LARRY R. BUNDA, A WIDOWER as Trustor, dated 10/5/2005 in the Official Records in the office of the Recorder of San Diego, California under the authority and powers vested in the Trustee designated in the Deed of Trust or as the duly appointed Trustee, default having occurred under the Deed of Trust pursuant to the Notice of Default and Election to Sell under the Deed of Trust recorded on 10/12/2005, instrument number 2005-0881960, Book ---, Page and rerecorded on --- as --- of official records. Trustee having complied with all applicable statutory requirements of the State of California and performed all duties required by the Deed of Trust including sending a Notice of Default and Election to Sell within ten days after its recording and a Notice of Sale at least twenty days prior to the Sale Date by certified mail, postage pre-paid to each person entitled to notice in compliance with California Civil Code 2924b. All requirements per California Statutes regarding the mailing, personal delivery and publication of copies of Notice of Default and Election to Sell under Deed of Trust and Notice of Trustee’s Sale, and the posting of copies of Notice of Trustee’s Sale have been complied with. Trustee, in compliance with said Notice of Trustee’s sale and in exercise of its powers under said Deed of Trust sold said real property at public auction on 9/14/2011. Grantee, being the highest bidder at said sale became the purchaser of said property for the amount bid, being $65,000.00, in lawful money of the United States, in pro per, receipt thereof is hereby acknowledged in full/partial satisfaction of the debt secured by said Deed of Trust. Again, there is no indication that any living person with an interest in the estate of Larry R. Bunda was given notice of this sale, despite the assurances of Western Progressive, in the Trustee’s Deed Upon Sale. The facts recited above raise many questions. First, why is this case being heard in Florida? Larry R. Bunda lived in California. His heirs live in the states of Washington and California. Ocwen’s filings indicate that it is based in Boston, Massachusetts. The real property was in California and the Deed of Trust was drafted on a California-specific form. The mortgage was declared in default according to California law, and the foreclosure and subsequent resale were performed under California law. The insurance policy was issued by a California agency. It appears the only connection of this unclaimed property to Florida is the address provided to the Department by Amco in its initial 2013 report: “last known address” of Post Office Box 57621, Jacksonville, Florida 32241. This address turned out to be that of HomEq. According to Ocwen’s Form 8-K, HomEq ceased to exist as a separate company as of September 1, 2010, approximately three years before Amco reported the unclaimed funds to the Department. The only real connections to Florida in this case are Global and Ocwen’s acts of following the money to its landing place at the Department. It is understandable that the Department took custody of the unclaimed property at the time Amco submitted it, given that the only address on the documentation was in Jacksonville. However, at some point it should have occurred to the Department that its unclaimed property counterpart in the State Controller’s Office of California might be better placed to resolve this controversy involving issues of California real property law, inheritance law, and insurance law.4/ One example will suffice to illustrate the problem of a Florida administrative agency attempting to apply California law to resolve these issues. In its proposed recommended order, the Department confidently argues that a 2014 amendment to section 580b of the California Code of Civil Procedure alters the analysis of this case as to the extinguishment of the debtor-creditor relationship during foreclosure proceedings. The Department fails to note that three separate Federal courts in California have concluded that the operation of the 2014 amendment is prospective only. It would therefore be inapplicable to the instant case. See Shin v. Citizens Bank, N.A., 2018 U.S. Dist. LEXIS 14997 at n.2 (S.D. Cal. 2018); Prianto v. Experian Info. Solutions, Inc., 2014 U.S. Dist. LEXIS 94673 at n.2 (N.D. Cal. 2014); Johnson v. Wells Fargo Home Mortg., Inc., 2013 U.S. Dist. LEXIS 185345 at 19 (C.D. Cal. 2013). An agency more familiar with California law might have been aware of the court decisions and the California rules of statutory construction that underlay their conclusions. Given its insistence that California law governs this case, the Department should have considered whether a California tribunal would be better placed to resolve these issues.5/ A second question regards the status of Ocwen, which filed its claim on Department Form DFS-UP-106, the form prescribed for “apparent owners.” Section 717.101(2) defines “apparent owner” as “the person whose name appears on the records of the holder as the person entitled to property held, issued, or owing by the holder.” It is unclear whether Amco or the Department would be considered the “holder” of the insurance proceeds, but it makes no difference as Ocwen’s name did not appear on the records of either entity. Ocwen could ultimately be found to be an “owner” as defined in section 717.101(18), and could be a “claimant” as defined in rule 69G-20.030(14), but Ocwen was not an “apparent owner” at the time it filed its claim, under the express terms of section 717.101(2). Therefore, it appears that Ocwen’s claim was filed on the wrong form and should have been filed on Form DFS-UP-107, prescribed by rule 69G-20.0021(5) for “claims filed by other than apparent owners,” which includes heirs, personal representatives, or beneficiaries, if Ocwen believed it was entitled to claim the funds as an owner. The Department should not have processed the Ocwen claim because it was not “complete” under the terms set forth in rule 69G-20.0021(1)(b), which provides that a complete claim “shall include the correct claim form identified in this rule.” Even if it were accepted that the rule’s definition of “apparent owner” should not be read literally and that Ocwen was entitled to file its claim as “apparent owner” by virtue of its status as HomEq’s purchaser and successor in interest,6/ there remains the question of whether HomEq, and therefore Ocwen, could be considered the “owner” of the unclaimed property in the sense required by section 215.965, Florida Statutes, which provides: Disbursement of state moneys.— Except as provided in s. 17.076, s. 253.025(17), s.717.124(4)(b) and (c), s. 732.107(5), or s. 733.816(5), all moneys in the State Treasury shall be disbursed by state warrant, drawn by the Chief Financial Officer upon the State Treasury and payable to the ultimate beneficiary. This authorization shall include electronic disbursement.[7/] (Emphasis added). The record evidence establishes that HomEq, and Ocwen as its successor, functioned as no more than loan servicers. While it is true that HomEq is named on the insurance policy as the “mortgage loss payee,” there is nothing in the record that establishes HomEq as the “ultimate beneficiary” of the insurance policy. HomEq’s part of the insurance transaction would be to collect the proceeds and pass them on to the ultimate beneficiary of the insurance contract, i.e., the lender whose money is at risk under the Deed of Trust. Ocwen could succeed to no more of an interest than that held by HomEq. The Department argues that “Ocwen is claiming the funds in its own name under the authority of a limited power of attorney to act on U.S. Bank’s behalf as a loan servicer.” For the sake of argument, the undersigned will put aside Ocwen’s failure to connect the Bunda mortgage to the Securitization Servicing Agreement for which it has a limited power of attorney. The Department offers no explanation as to what set of circumstances would allow an entity operating pursuant to a limited power of attorney--by definition,8/ in a representative capacity--to claim ownership, in its own name, of funds it seeks as agent on behalf of its principal. The Department simply takes it as a given that Ocwen may claim as an owner. The Department specifically relies on language from the Limited Power of Attorney giving Ocwen authority to: Demand, sue for, recover, collect and receive each and every sum of money, debt, assessment, and interest (which now is, or hereafter shall become due and payable) belonging to or claimed by U.S. Bank National Association, as Trustee . . . . The Department seems to believe that this language self-evidently establishes Ocwen’s ownership interest in the proceeds of this insurance policy, when it merely authorizes Ocwen to go out and recover funds “belonging to U.S. Bank.” It does not transfer ownership of those funds to Ocwen. It does not make Ocwen the ultimate beneficiary of the insurance policy. The undersigned is aware of cases such as Lenart v. Ocwen Financial Corporation, 869 So. 2d 588 (Fla 3d DCA 2004), in which the court assumed without discussion that a loan servicer such as Ocwen may stand in the shoes of the mortgagee as “owner” for the purpose of litigation over insurance proceeds. However, Lenart involved litigation between private parties. It did not involve an unpaid property claim before the Department, which has very specific requirements under statute and rule, including the “apparent owner” limitation on the use of Form DFS-UP-106 and the “ultimate beneficiary” limitation on the disbursement of moneys from the State Treasury in section 215.965. Even if Ocwen were to establish its right to claim insurance proceeds as the mortgage loss payee, it would not necessarily have proven its right to claim those funds once they have become unclaimed property and passed to the Department’s custody. In its attack on the proposed award to Ocwen, Global contends that Ocwen’s documentation fails to establish that the rights of HomEq as the loss payee on the insurance policy were transferred to Ocwen by its acquisition of HomEq in 2010. As indicated above, the undersigned is persuaded that Ocwen did succeed to HomEq’s rights but finds that those rights are insufficient to establish Ocwen’s status as an owner of the proceeds. The record evidence at most establishes that Ocwen is the agent of the ultimate beneficiary of the insurance policy. Global cites Martin Young v. Department of Banking and Finance, 659 So. 2d 410 (Fla. 1st DCA 1995), for the proposition that the Department may not disburse funds to Ocwen because Ocwen is no more than a creditor in this case. In Martin Young, the Department had awarded unclaimed insurance proceeds to creditors of the apparent owner. On appeal, the Court first held that the Department has no statutory authority to prioritize competing claims, a holding since superseded to a degree by statute. See § 717.1241, Fla. Stat. More to the point, the court held that creditors were not “owners” because they did not have a “legal or equitable interest” in the subject property. “Insurance proceeds are personal property which judgment creditors cannot reach or claim an interest in until after resorting to judicial process.” Martin Young, 659 So. 2d at 411. The Department distinguishes Martin Young by arguing that it involved unsecured creditors, whereas U.S. Bank was a secured creditor by reason of the recorded Deed of Trust containing a power of sale provision and the homeowner’s insurance policy with the standard mortgagee clause. Global accurately points out that the Martin Young court stated no distinction between secured and unsecured creditors. However, the court’s holding appears expressly limited to the reach of judgment creditors who have not obtained a lien by way of writ of execution. The Department is correct that a secured creditor such as U.S. Bank already has a lien on the property and executes on that lien when it forecloses on the secured loan. Of course, the Department’s analysis assumes that U.S. Bank’s agents foreclosed on the property in accordance with California law. As indicated in Findings of Fact 31-45, there is insufficient evidence in the record to establish that the default and foreclosure were properly performed. Though Martin Young appears not to preclude an award to Ocwen, the statutes and rules under which the Department operates do not allow Ocwen, as U.S. Bank’s agent, to claim “ownership” of the unclaimed funds. The question at the heart of this case, regarding the claim of Global and especially that of Ocwen, is: what happened in California? The Department’s preliminary decision to award the claim to Ocwen assumes that a check was issued to the Bunda estate, that the Bunda estate failed to keep up the payments on the property, and that the Bunda estate allowed the foreclosure to occur in 2011. The evidence supports none of the Department’s assumptions. It is known for certain that Larry R. Bunda entered into a Deed of Trust to purchase the property at 546 Elm Street, Ramona, California, on October 5, 2005. It is known for certain that Larry R. Bunda purchased homeowner’s insurance on the property with a face value of $273,100 for the dwelling and that the term of the insurance was from May 6, 2007, to May 6, 2008. It is known for certain that Larry R. Bunda died on September 8, 2008. Beyond these facts, matters become hazier if one relies on the documents in evidence without assuming facts outside the record. One may reasonably presume the correctness of Nationwide’s report that the total loss of Mr. Bunda’s dwelling occurred on October 22, 2007. That date coincides with the time of the Witch Creek fire, which began near the town of Ramona and destroyed over 1,000 residences and other buildings. Therefore, it is reasonable to find that Larry R. Bunda was alive when the loss occurred. Nationwide reported to Global that the original check to pay the insurance claim was check number 0371843635 and was issued on November 5, 2009, more than one year after Larry R. Bunda’s death. Nationwide offered no explanation as to why the check was issued more than two years after the loss was incurred. Nationwide did not provide a copy of the check or state to whom the check was made payable. No explanation was given for the failure of any party to negotiate the check. Nationwide later reported to the Department that two other checks had been issued: check number 378364049 and the reissued check number 378366435. Nationwide gave no dates for these two checks. Nationwide did not provide copies of these checks or state to whom the checks were made payable. No explanation was given for the failure of any party to negotiate either of the checks. No evidence was presented as to why Nationwide issued more than one check. No evidence was presented as to why none of these checks was ever negotiated. If one presumes that the checks were made payable to the policy payees, Larry R. Bunda and HomEq, and that Mr. Bunda was dead at the time they were issued, then one questions why HomEq apparently failed to take any steps to secure the funds for its principal. Was HomEq aware that Larry R. Bunda was dead at the time the checks were issued? Such might be inferred from the August 11, 2010, notice that HomEq sent to Mr. Bunda at his son’s address in Bremerton, Washington. However, it is just as likely that Mr. Bunda moved in with his son after the loss of his home and sent HomEq a forwarding address. Any finding on that score would be speculative. In any event, HomEq was absorbed by Ocwen on September 1, 2010. The record indicates no further correspondence addressed to Bremerton, Washington. As HomEq’s successor, Ocwen should have known of the Washington address, but the record contains no direct mailings from Ocwen to Larry R. Bunda. There is nothing in the record indicating that Western Progressive’s Notice of Default and Notice of Trustee’s Sale were addressed to anyone other than the borrower, Larry R. Bunda, who was long dead by the time the default and foreclosure proceedings on 546 Elm Street began. Nonetheless, the Notice of Default falsely stated that Western Progressive had contacted “the borrower either in person or by telephone” to explore options to avoid foreclosure. Further, at the time it issued the Notice of Default, Western Progressive had yet to be substituted as trustee under the Deed of Trust. Based on this record and the briefs of the parties, there is no way to ascertain the rights (if any) of Larry R. Bunda’s heirs to unwind the sale of the property or seek damages for Western Progressive’s selling of the property without notice to the Bunda estate. This point is important because a large part of the Department’s argument for awarding the claim to Ocwen rests on the assumption that the Bunda heirs “waived” their right to contest the Ocwen claim because of “the foreclosure they allowed to occur in 2011.” There is no record evidence that the Bunda heirs even knew of the foreclosure, let alone “allowed” it to happen. The Department simply assumes a fact not in evidence.9/ Global claims that the Bunda heirs are entitled to one-half of the proceeds of the insurance policy as the successors to Larry R. Bunda as the joint named payee on the policy. Global relies on the Order of Summary Administration entered by the Leon County circuit court on September 22, 2016, adjudging that there be an immediate distribution of the assets to the Bunda heirs. On November 15, 2017, the circuit court on its own motion entered an Order to Set Aside Order of Summary Administration, citing unspecified “abnormalities” that had been found in the estate file. Thus, Global’s reliance on the Order of Summary Administration is misplaced. As to the heirs’ entitlement to one-half of the proceeds, this argument would be more persuasive had the policy been one for life insurance, as the Department and Global originally believed. Because the actual policy was a homeowner’s insurance company, the heirs’ rights would appear to be subsidiary to the rights of the secured creditor to obtain the difference between the value of the note and the price obtained from the trustee’s sale of the property in its damaged condition. Again, however, this hierarchy of rights depends on a finding that the Notice of Default, the Notice of Trustee’s Sale, and the trustee’s sale of the property at 546 Elm Street were conducted in accordance with California law. The Department appears sanguine that this is the case, but the record presented at the hearing does not permit a finding that Ocwen’s principal, U.S. Bank, through its agent, Western Progressive, gave notice to any living person with an interest in Larry R. Bunda’s estate of the default, foreclosure, or trustee’s sale on the property at 546 Elm Street in Ramona, California. The record is not even clear that Western Progressive was an authorized agent at the time it issued the Notice of Default. The record permits no conclusion as to the legal effect of a failure to notify the estate or of falsely attesting that notice has been given to the borrower. Nonetheless, a finding that Ocwen has failed to establish ownership of the funds does not necessitate a finding that the Bunda heirs are entitled to the funds. Enough is known of the situation to permit the conclusion that the Bunda heirs’ claim is likely a subsidiary claim. It would be premature to award them half of the unclaimed property until the Department or some other entity conducts a proper investigation and determines whether the foreclosure on the Bunda mortgage was conducted in accordance with California law. Global’s final ground for claiming entitlement to the funds is that it filed the first complete claim. Section 717.1241(1)(a) provides: When conflicting claims have been received by the department for the same unclaimed property account or accounts, the property shall be remitted in accordance with the claim filed by the person as follows, notwithstanding the withdrawal of a claim: To the person submitting the first claim received by the Division of Unclaimed Property of the department that is complete or made complete. The Department concedes that Global filed all of the necessary paperwork. Its application was not “incomplete” in the clerical sense that Global left out any of the information required by Form DFS-UP-108. The Department contends that Global’s application was not substantively complete in that it did not establish proof of entitlement to the funds on the part of the Bunda heirs. “Proof of entitlement” is expressly required in order for an application to be deemed “complete.” Section 717.1241(3) provides: “A claim is complete when entitlement to the unclaimed property has been established.” See also Fla. Admin. Code R. 69G-20.0021(1)(b)&(c). The Department observes that section 717.1241 is a procedural statute enacted to provide guidance to the Department when it receives claims from two or more claimants, all of whom are entitled to the property. The “first to file” language does not create an independent basis for establishing entitlement but is a way for the Department to choose among entitled claims. For purposes of commencing a review, the Department deems a claim “complete” when all the required documentation has been submitted. If a claim is missing information, the Department may return it to the claimant or request additional information from the claimant. If more information is sought, the claim is abated until the Department receives the requested information or deems the claim withdrawn for failure to provide the information. § 717.124(1)(b), Fla. Stat. If the claimant provides the requested information, then the Department will review the claim on the merits to determine whether entitlement has been demonstrated. The Department argues that the merits review is subsequent to and separate from the claimant’s submission of the required documents. Global has conflated the claimant’s responsibility to provide all required documentation with the Department’s responsibility to review the claim on the merits and determine whether entitlement has been established by a preponderance of the evidence. The mere fact that the claimant provides the documentary information required by statute and rule does not mean the claim is “complete” in the sense that entitlement is established. The Department’s argument is correct. The facts of this case do not permit a finding that the Bunda heirs are entitled to the unclaimed funds. A secured lienholder who followed all proper steps in notifying the borrower or his heirs of the default, of the foreclosure, and of the pending trustee’s sale would be entitled to cover any deficiency with some or all of the proceeds of the insurance policy. Ocwen’s failure to demonstrate that all proper steps were taken means that it is not entitled to the unclaimed funds under the facts of this case, but Ocwen’s failure does not establish that Global’s claim is “complete” on the merits. In summary, Ocwen has failed to establish by a preponderance of the evidence that it is entitled to the funds in Unclaimed Property Account Number 117786622 because: It failed to file its claim on the correct form; It failed to establish its right to claim as an “owner” of the property; and It failed to establish that the foreclosure and sale of the Bunda property were conducted in accordance with California law. Global failed to establish by a preponderance of the evidence that it is entitled to a portion of the funds in Unclaimed Property Account Number 117786622 because its claim is subsidiary to that of the secured creditor, and the evidence did not foreclose the possibility that U.S. Bank may have a valid claim to the property as the secured creditor, if the regularity of the events surrounding the foreclosure and sale of the Bunda property can be established. Under the facts established by the record of this case, neither claimant established its entitlement to Unclaimed Property Account Number 117786622. This finding and recommendation should not preclude the Department from allowing Ocwen to file a proper claim as a representative of U.S. Bank and then undertaking further investigation to establish whether the foreclosure sale on the Bunda property was conducted in accordance with California law. If Ocwen is unable to establish U.S. Bank’s right to the unclaimed property as a secured creditor, then the subsidiary claim put forward by Global on behalf of the Bunda heirs should be held entitled to the property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the claim of Ocwen Loan Servicing, LLC, for entitlement to Unclaimed Property Account Number 117786622 be DENIED, without prejudice. It is also RECOMMENDED that the claim of Global Discoveries Ltd., LLC, for entitlement to Unclaimed Property Account Number 117786622, be DENIED. DONE AND ENTERED this 23rd day of April, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 23rd day of April, 2018.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, William D. Manser (Respondent) was licensed in Florida as a real estate broker, having been issued license number BK 0427410. Respondent was a broker/officer of United Equity Marketing, Inc., located at 6635 West Commercial Boulevard, Tamarac, Florida. Since October 1, 1995, his broker's license has not been on an active status due to non-renewal of the corporate registration. By warranty deed dated February 14, 1992, James and Angela Cunduff became owners of property located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. By Articles of Agreement for Deed dated February 25, 1992, James and Angela Cunduff agreed to convey the property to Respondent's corporation, United Capital Networks, Inc., if certain conditions were complied with. The conditions included Respondent's corporation making all the mortgage payments and paying the taxes on the property, and keeping the buildings on the property properly insured. In return, James and Angela Cunduff agreed, among other things, to execute a warranty deed to Respondent's corporation and to place the warranty deed in escrow. Respondent and the Cunduffs agreed that the Articles of Agreement for Deed would not be recorded. Respondent looked upon himself and conducted his actions as the owner of the property at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. On October 31, 1995, Mary J. Augustine signed a lease agreement for the rental of a portion of the home, the rear of the home, located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. The rear area of the home had its own entrance. The rental was for one year, beginning November 15, 1995, and ending October 30, 1996. Respondent used part of the home as a storage area. At the front of the home, there were two separate entrances. One of the separate entrances was for the storage area. The other separate entrance was for another area of the home. The lease agreement indicated United Equity Markets, Inc., as the managing agent of the property. The lease agreement required signatures of the "Tenant" and the "Lessor." Ms. Augustine signed the lease as "Tenant," and Respondent signed as "Lessor," adding the word "Agent" next to his signature. United Equity Markets, Inc., is Respondent's corporation. Prior to the signing of the lease, Respondent had met with Ms. Augustine at the house at least twice before she signed the lease agreement. Respondent represented himself as the manager of the property. The home was listed as a single-family residence. Ms. Augustine believed that the home would be occupied by Respondent, another tenant, and herself. The evidence is insufficient to show and make a finding that three families would live or had lived at the home. In accordance with the lease agreement, Ms. Augustine gave Respondent $1,290, as a security deposit. Ms. Augustine had also given Respondent, prior to the security deposit, $645 for the first month's rent. Ms. Augustine wanted to move into the rear portion of the home approximately two weeks prior to the beginning of the rental period. Respondent agreed that Ms. Augustine could have access to the home and clean the rear area where she was going to reside. Ms. Augustine had problems with, such things as, the refrigerator, oven, and swimming pool. She decided not to rent the home. Ms. Augustine demanded her deposit and first month's rent from Respondent. However, he refused to return the monies. The lease agreement contained a default provision, providing for the recovery of damages by the lessor if the tenant defaulted. The lease agreement also contained a security provision, providing for the non-refundable nature of the security deposit under certain conditions, including termination of the lease prior to its expiration. Ms. Augustine attempted but could not contact Respondent at his office because he had closed his office prior to October 1995. Ms. Augustine attempted also to contact Respondent at the telephone number that he had provided her, which was his home number. She was again unsuccessful due to Respondent having his telephone disconnected because he had gone to New York to care for his ill sister. Respondent did not provide Ms. Augustine with an accounting of the monies. Respondent was conducting his own personal real estate transaction with Ms. Augustine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against William D. Manser. DONE AND ENTERED this 24th day of February, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 24th day of February, 1999.
The Issue Whether Respondent's registration as a real estate broker should be suspended or revoked for alleged violations of Sections 475.25(1)(a) , (i) & (j) , Florida Statutes. The Respondent appeared at the hearing without legal counsel and was advised as to his right to be represented by legal counsel at his own expense. He elected to represent himself at the hearing. He was also advised of his rights under the Administrative Procedure Act, including his right to testify under oath if he so desired, and he indicated his understanding of these rights. The hearing officer advised counsel for Petitioner that although the Administrative Complaint contained an alleged violation of Section 475.25(1)(i), this violation was not stated in the Notice of Hearing. Petitioner's counsel stated that Paragraph 2, Count 2, of the Administrative Complaint stated a violation of that subsection, but that it had not been alleged as a separate ground therein for adverse action. However, counsel stated that if the evidence presented indicated such a violation, Petitioner would amend its complaint at that time to conform to the evidence, and that it desired to present evidence concerning such a possible violation. At the conclusion of the hearing, Petitioner requested that this alleged violation be included in its Complaint. Respondent was advised that he could request a continuance if necessary to defend against the additional allegation, but he stated that he was able to defend against it without need for a continuance.
Findings Of Fact Respondent was a registered real estate broker during the period when the alleged violations occurred and is currently registered in the same capacity. (Petitioner's Exhibit 9). On or about February 27, 1973, Respondent was the real estate broker for Associated Real Estate of Broward, Inc., a Florida Corporation, in which he owned all of the stock. On that date, one Lawrence Tellschow delivered to Respondent a check in the sum of 4000.00 as a deposit upon property which he desired to purchase from Louise M. Orner, located in Boca Raton, Florida. Tellschow signed a deposit receipt contract on that date which provided on the reverse under "Deposit" that "(Checks issued for the deposit on this contract will be deposited promptly for clearance (after acceptance of this contract by all parties) and the holder of the deposit will not be responsible for the nonpayment of checks". Respondent thereupon obtained the signature of the seller on the contract and returned to his office at which time Tellschow told him not to deposit the check in the escrow account because he had no bank and the check was no good. He further stated that someone else was supposed to give him a check for the deposit, but had not done so. Respondent thereupon returned the check to Tellschow, called up the seller's son and informed him that there was no contract and that he would send a letter to that effect. He did so on March 1st, wherein it was stated that the check did not clear the bank and that after returning the check to Tellschow, the latter had then decided to withdraw his offer. However, Respondent also stated in this letter words that indicated he had not, in fact, deposited the check (Testimony of DeGeorge, Harper, Chappell; Petitioner's Exhibits 1,4,5,6,7) On March 1, 1973, Respondent, Henry Pinelli, Lawrence Tellschow, and Associated Real Estate of Broward, Inc., entered into an agreement whereby Pinelli and Tellschow would contribute monies for the purchase of stock in the corporation, and become officers and directors thereof. The agreement further provided that the corporation would engage in real estate investment and development. It also stated that Pinelli had made certain loans to the corporation for the purchase of properties, that he contemplated making and/or securing additional loans for such purpose, and that he would be entitled to receive a note and mortgage from the corporation as to all such funds. This agreement was modified by a later undated agreement which provided that a certain single family residence under construction at Lighthouse Point, Florida, real property owned by the corporation should be held by the corporation simply as "nominee and for the account of Henry Pinelli" who would assume all obligations and be entitled to all profits derived from said property. It further provided that Respondent and the corporation would have the exclusive right to sell the said property and that the six percent commission there for would go solely to the benefit of Respondent Respondent's Exhibits 1 & 2). The three principals in the corporation had a number of disputes with respect to the activities of the corporation which resulted in the resignation of Tellschow on June 15, 1973, and differences between Respondent and Pinelli as to entitlement to real estate commissions. Although their agreement provided that Respondent would have the exclusive right to sell properties which were acquired by funds advanced by Pinelli (and which were later deeded to him by the corporation), Pinelli gave listings to other realtors for his property located at 3531 N.E. 30th Avenue, Lighthouse Point, Florida. Respondent's conviction that he was being ill-treated by Pinelli led him to place a mechanic's lien on the Lighthouse Point property on November 1, 1973. This lien was predicated upon Respondent allegedly having furnished labor, services or materials consisting of: "exclusive sales agent". On May 9, 1974, the Circuit Court of Broward County, Florida, issued an Order requiring Respondent to remove the claim of lien. Respondent had not had the permission of the owners of the property to place the lien thereon. By the time the lien was removed, various law suits were pending between the parties which had not been resolved (Testimony of Bamman, Henry Pinelli, Patricia Pinelli, Waderlow, DeGeorge; Petitioner's Exhibits 10 & 11: Respondent's Exhibits 4-20).
Recommendation That Respondent Donald D. DeGeorge be issued a written reprimand for violation of Section 475.42(1)(j) , Florida Statutes. DONE and ORDERED this 4th day of March, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J.R. Parkinson, Esquire Mr. Donald G. DeGeorge Florida Real Estate Commission c/o Grear Real Estate, Inc. .2699 Lee Road 901 S.E. 17th Causeway Street Winter Park, Florida 32789 Ft. Lauderdale, Florida
The Issue Whether the Department of Financial Services (the “Department”) correctly denied the unclaimed property claim submitted by Choice Plus, LLC (“Choice Plus” or “Petitioner”), on behalf of Louis Nardi as attorney-in-fact for Felicia Leggiero (“Leggiero”).
Findings Of Fact Based on the evidence presented at the hearing, and the record as a whole, the undersigned makes the following findings of relevant and material fact: Choice Plus is registered with the Department as a “claimant’s representative” pursuant to section 717.1400, Florida Statutes (2020). In Florida, a claimant’s representative may file claims with the Department on behalf of owners of unclaimed property for a fee. See Joint Ex. 1, Bates Nos. 0001-17. The Department is the state agency charged with the responsibility of administering and processing claims, pursuant to the provisions of chapter 717, the Florida Disposition of Unclaimed Property Act (“Act”). See Joint Ex. 4, Bates No. 0045. Between 2005 and 2018, the Department received unclaimed stock shares and dividends reported in the names of John R. Leggiero and Felicia R. Leggiero, from various holders. The Department currently maintains the funds, totaling $116,322.10, in 24 unclaimed property accounts. See Joint Ex. 1, Bates Nos. 0001-3. The Claim by Choice Plus On or about May 26, 2020, Choice Plus filed a written claim, No. C8610372, on behalf of Louis Nardi, as attorney-in-fact for Felicia R. Leggiero, for 24 unclaimed property accounts. In support of the claim, Choice Plus provided the Department a copy of a Limited Power of Attorney (“LPOA”) and full disclosure statement, pursuant to section 717.135, executed by Louis Nardi; a copy of Louis Nardi’s driver’s license; a copy of Leggiero’s driver’s license; a Florida Certificate of Death for John R. Leggiero, indicating that he predeceased Felicia R. Leggiero; a copy of a durable power of attorney where Leggiero designated her brother, Louis Nardi, as her attorney-in-fact; and the results of a TLO.com search.1 See Joint Ex. 1, Bates Nos. 0001-17. The LPOA and full disclosure statement, executed on May 4, 2020, authorized Choice Plus to file a claim on behalf of Louis Nardi as attorney-in- fact for Felicia R. Leggiero, for a fee of $11,632.21. § 717.135, Fla. Stat. The LPOA included the following language: CP offers to advance its expertise and financial resources, including legal expenses, on Claimant’s behalf, to prove entitlement and secure release of property from any person or entity in possession of property. In exchange for CP’s resources Claimant irrevocably assigns Claimant’s right, title and interest in property up to the amount and/or percentage reference above as Compensation. If CP 1 A people and business location system that searches public and proprietary databases. fails to document Claimant’s entitlement, nothing will be owed to CP. See Joint Ex. 1, Bates Nos. 0004-5. As a part of the Department’s statutorily mandated review of the claim submitted by Choice Plus, it conducted a Driver and Vehicle Information Database (“DAVID”) search for Leggiero on June 17, 2020. The search indicated that she died on May 27, 2020. See Joint Ex. 4, ¶ 3; and Joint Ex. 5, Bates No. 0042. In part, because of her death, the Department issued a Request for Information (“RFI”) on June 18, 2020, to Choice Plus. The RFI noted that Felicia R. Leggiero was deceased, and requested probate documentation for her estate. See Joint Ex. 2, Bates No. 0018. As it turns out, this is a common request when the Department has questions or concerns about a claim that is filed, or needs additional documentation as it sorts through and evaluates the merits of a claim. On July 13, 2020, the Department received Choice Plus’s response to the RFI. The response consisted of a four-page memorandum which extensively outlined the law and the position of Choice Plus on the claim. In the memorandum, Choice Plus took the position that the claim was complete when filed, and that the claim determination was retroactive to the date of filing the claim. See Joint Ex. 3. Choice Plus further argued that the Department should not consider subsequent events, i.e., the death of the claimant, when determining entitlement to the unclaimed property. Interestingly, however, it took the position that the Department must pay the claim to the “estate” of the deceased claimant. Id. However, and of particular note, Choice Plus provided no documentation to show that (1) Felicia R. Leggiero’s estate had been submitted to probate court for administration; (2) that Choice Plus represented Felicia Leggiero’s estate; or (3) represented the personal representative of her estate. See Joint Ex. 3, Bates Nos. 0019-24. After its review of the claim file and the memorandum submitted by Choice Plus, the Department issued a Notice of Intent (“NOI”) on October 20, 2020, stating that it would enter a final order denying the claim filed by Choice Plus on behalf of Louis Nardi as attorney-in-fact for Felicia R. Leggiero. The Department took the position, essentially, that at the time it began its review of the claim, Leggiero had already died and that, therefore, as a matter of law, Leggiero no longer had any legal or beneficial entitlement to the unclaimed funds, as entitlement had already vested in her estate. See Joint Ex. 4, Bates Nos. 0045-49, ¶¶ 11-13. Director Graham also testified that the Department’s treatment of this particular claim was consistent with the Department’s treatment of similarly situated claims where the claimant or person entitled to the property dies after submitting a claim to the Department, but before the Department has the opportunity to review and evaluate the claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order affirming the denial of Petitioner’s claim. However, it is recommended that the Department should accept and consider the submission of a supplemental claim by any lawful beneficiaries or heirs of Felicia Leggiero to determine entitlement pursuant to the provisions of chapter 717 and other provisions of law. DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Michael A. Alao, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Diane Wint, Agency Clerk Division of Legal Services Department of Financial Services Room 612.14, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390 S ROBERT L. KILBRIDE 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 March, 2021. Michael J. Farrar, Esquire Michael J. Farrar, P.A. 18851 Northeast 29th Avenue, Suite 700 Aventura, Florida 33180
Findings Of Fact Respondent, Benny Isaiah, holds real estate broker's license number 0311124 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Greater Realty of Orlando, Ltd., Inc., is a real estate broker corporation and holds license number 0223392 also issued by petitioner. When the events herein occurred, its offices were located at 66408 International Drive, Orlando, Florida. At all times relevant hereto, Isaiah operated as the qualifying broker for Greater Realty. On or about November 2, 1982, Isaiah's wife, Dalia, a real estate salesman in respondent's fir, obtained an offer from Arthur Zimand to purchase a residence located at 9227 Bay Point Drive, Orlando, Florida, for $190,000. The residence was owned by Tran Van Don, a former Vietnamese army officer. In the contract for sale and purchase, Zimand established a closing date of February 1, 1983. He also gave respondent's firm a $2500 earnest money deposit to be held in escrow by Greater Realty which was placed in the appropriate escrow account as required by law. The contract provided that "(i)f the offer is not executed by both of the parties on (a date specified therein), the . . . deposit(s) shall be, at the option of the Buyer, returned to him and this offer shall thereafter be null and void." The above offer was presented to the seller and rejected. Thereafter, Don prepared a counter-offer on November 9, 1982, which increased the sales price to $205,000 and changed the closing date to November 30, 1982. After reviewing the counter-offer, Zimand agreed to all changes except the closing date of November 30, 1982. He could not agree to that date since he was unable to obtain sufficient funds to close the transaction until December 10, 1982. Accordingly, Zimand crossed out the closing date suggested by the seller, wrote in December 10, 1982, in its place, and initialed the change on the contract. The later closing date was unacceptable to the seller and he did not accept Zimand's counter-offer. Therefore, no contract was executed by the parties. Respondents were so notified by the seller's attorney by letter sent on November 23, 1982. The letter advised them that the seller would not accept the closing date of December 10, and that accordingly no contract between the two parties existed. On November 24, 1982, Zimand wrote respondent's wife a letter in which he withdrew his offer and requested a prompt refund of his $2500 deposit. On December 3 and 11, 1982, respectively, Zimand and Don executed a "release of deposit receipt" wherein both parties instructed respondents to disburse the deposit held in escrow to Zimand. By signing the release form, the seller acknowledged that he had no interest in the deposit monies. The document was mailed to respondents on January 11, 1983. This was followed by a letter to Isaiah from Zimand's attorney on January 25, 1983, again requesting a refund of the deposit within ten days. Despite these requests, Isaiah did not refund the deposit. On or about December 8, 1982, Isaiah withdrew the $2500 from his escrow account. The disposition of those funds is not known. Zimand later instituted a civil action against Isaiah seeking to recover his deposit. He also filed a complaint with petitioner. On May 9, 1984, or just before the matter went to trial, Isaiah returned the deposit to Zimand. This was some seventeen months after Zimand first requested a refund of his deposit. Isaiah contends there was a valid contract between Zimand and Don, and that they used a "technicality" (a dispute over closing dates) to get out of closing the transaction. Because of this, he believes he was originally entitled to keep the $2500 as a sales commission. He also contended that his wife is the person who should be involved in this proceeding rather than him since she negotiated the contract and is more familiar with the details of the contract. Finally, he asserts the dispute has no clear-cut answer, and falls within a "gray" area. As such, he was justified in his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of Counts I, II and III of the administrative complaint, that their licenses be suspended for six months, and each pay a $500 administrative fine within forty-five days after a final order is entered in this cause. DONE AND ENTERED this 8th day of November 1984 in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November 1984.
Findings Of Fact 1. On October 15, 2009, the Department issued a Notice of Intent to enter a final order denying claim number C2782114 on the grounds that Mr. Merkle failed to submit the recovery agreements with the claim, and that he was not a registered claimants' representative. See Exhibit A. The Notice of Intent was served on Mr. Merkle by Certified Mail™ Service on October 21, 2009. See Exhibit B. 2. On December 22, 2009, Mr. Merkle requested a hearing. See Exhibit C. On January 4, 2010, the Department referred the matter to the Division of Administrative Hearings for formal proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes. See Exhibit D. The Division of Administrative Hearings ("DOAH") assigned the case number 10-0005. 3. On February 26, 2010, the Department moved the administrative law judge to relinquish jurisdiction to the agency based on a lack of material facts in dispute. See Exhibit E. 4. On March 4, 2010, the administrative law judge entered an order relinquishing jurisdiction to the agency for final agency action. See Exhibit F. No exceptions to the recommended order were filed. 5. The factual allegations contained in the Notice of Intent, incorporated herein by reference, are adopted as findings of fact in this case.
Conclusions On October 15, 2009, the Department of Financial Services ("Department") issued a Notice of Intent to enter a final order denying claim number C2782114 filed by LeRoy H. Merkle, Jr., ("Mr. Merkle"), for funds held in the state treasury in the name of Anne (a/k/a Anna) Marie Clegg (the "Reported Owner"), pursuant to Chapter 717, Florida Statutes (the "Disposition of Unclaimed Property Act" or the "Act"). In order to take final agency action concerning the - claim, the Chief Financial Officer has considered the record in this matter, and makes the following Findings of Fact and Conclusions of Law:
Appeal For This Case Any person adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Florida Rule of Appellate Procedure 9.110. Review proceedings must be instituted by filing a notice of appeal with DFS Agency Clerk Julie Jones, CP, FRP, Florida Department of Financial Services, 200 E. Gaines Street, Tallahassee, FL 32399-0390, Telephone (850) 413-4177, Julie. Jones@MyFloridaCFO.com, and a copy of the same accompanied by the required filing fee with the appropriate District Court of Appeal within thirty 30) days of rendition of this Order. DONE and ORDERED this__/p/h___ day of hyo ct , 2010. TAMMY TESTON Chief of Staff Case No. 107119-09-CI Page 3 of 4 CERTIFICATE OF SERVICE I CERTIFY that a copy hereof has been furnished by Certified Mail™ Service and facsimile as indicated, this lo AL day of Aga A f ; 2010, to: LeRoy H. Merkle, Jr., Esquire 800 West Platt Street, Suite 4 Tamanna Plasidn 22406 41 7108 2133 3935 23134 0410 (article number) and facsimile: 813-251-3377 Mark W. Brunner 2950 South Holly Avenue Amelia, Ohio 45102 91 7108 2133 3935 23238 0627 (article number) Michael Lee Brunner 1408 Wilson Dunham Hill New Richmond, Ohio 45157 91 7108 21335 3935 2318 0834 - {article number) L_ LORI L. JOBE Fla. Bar No. 16650 Assistant General Counsel Florida Department of Financial Services 200 East Gaines Street Tallahassee, FL 32399-4247 copies to: Walter T. Graham, Chief Unclaimed Property Bureau Fletcher Building, Room 352 M Tallahassee, Florida 32399-0358 Lori L. Jobe, Esquire Division of Legal Services Fletcher Building, Room 464 Tallahassee, Florida 32399-4247 Case No. 107119-09-CI Page 4 of 4
Findings Of Fact On August 17, 1989, the Executive Board acting for the Local Elected Officials of the Heartland Employment and Training Consortium, voted to terminate Clifton Thomas, Jr., from his position as Executive Director of the Heartland Private Industry Council. At the time of his termination from employment, Mr. Thomas was being paid the sum of $47,528 per annum. Mr. Thomas' salary was established on an annual basis by the Executive Board. On or about December 1, 1989, Mr. Thomas, acting through his attorney, Mr. Robert McKee, notified E. John Dinkel, III, acting as counsel for the Executive Board, that he intended to file a law suit against the Heartland Employment and Training Consortium and its Executive Board. The complaint to be filed in the United States District Court, Middle District of Florida, Tampa, Division, demanded equitable relief and damages and alleged that Mr. Thomas was fired without justification and "was not accorded due process." Mr. Dinkel, acting as counsel for the Executive Board, was able to obtain agreement from Mr. McKee, acting as counsel for Mr. Thomas, that the complaint would be dropped upon payment of $24,096 to Mr. Thomas. At a regularly scheduled meeting of the Heartland Private Industry Council held on December 14, 1989, the Council voted to concur in a payment of $24,096 to Mr. Thomas to avoid the cost of litigation. It was understood and agreed that a statement would be signed by Mr. Thomas denying any liability or wrongdoing by any of the parties to the action. At a specially convened meeting of the Executive Board of the Heartland Consortium held on December 15, 1989, the Board unanimously agreed to the settlement. On December 21, 1989, a check in the amount of $21,598.40 was issued to Mr. Thomas. This amount represented the agreed upon amount minus a levy from the Internal Revenue Service. The check (#010471) was charged to the pooled administrative funds from allocations through State of JTPA formula monies. In consideration of the above payment, Mr. Thomas gave up his threatened law suit and signed a statement, dated December 22, 1989, denying any wrongdoing on the part of the Executive Board, the Heartland Private Industry Council and any officers or employees of the Board or Council. In the annual audit of the Heartland Private Industry Council conducted by Grant Thornton, Accountants and Management Consultants, the use of JTPA monies to pay the former Executive Director was questioned. The auditor stated: "The use of JTPA funds in settlement of legal claims was determined by Florida Department of Labor and Employment Security to be an unallowable cost under State and Federal law as indicated in a letter to the Council's attorney dated November 6, 1989, therefore this is a questioned cost." On September 30, 1991, the Heartland Private Industry Council received notification from Patricia S. Gilbert, Director, DLET that the costs questioned by the auditor were disallowed. No reason other than that cited by the auditor was given. On October 24, 1991, Heartland Private Industry Council, Inc., notified the Department of Labor of their intent to appeal the disallowed cost. On November 1, 1991, Jack E. Lyons, Executive Director of the Heartland Private Industry Council, wrote a letter to Secretary Scruggs, questioning the applicability of the statutes, both State and Federal, that were cited by the auditor in the statement of questioned costs. At a regularly scheduled meeting of the Heartland Private Industry Council held on April 17, 1992, the Council denied any misapplication of Federal JTPA dollars and voted to not permit the Executive Director to settle the disallowed costs by payment from non-JTPA dollars. The attached documentation styled Index of Exhibits, containing fourteen (14) exhibits is incorporated by reference into the proposed Statement of Facts.
Recommendation It is recommended that a Final Order be entered finding the payment to Clifton Thomas, Jr., of $24,096 in settlement of his law suit against the Heartland Private Industry Council Inc. to be a nonallowable cost and improperly charged to federally provided funds. RECOMMENDED this 29th day of July, 1992, in Tallahassee, Florida. K. N. AYERS 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 29th day of July, 1992. COPIES FURNISHED: Larry R. Jackson, Esquire 300 Parkview Place Lakeland, FL 33805 Carolyn Cummings, Esquire Hartman Building, Suite 307-2102 Capitol Circle SE Tallahassee, FL 32399 Frank Scruggs, Secretary 303 Hartman Building 2012 Capital Circle SE Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel 307 Hartman Building 2012 Capital Circle SE Tallahassee, FL 32399-2152
