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 The issue presented for decision herein is which of several claimants to payments from the Mortgage Brokerage Guaranty Fund are now entitled to payment and, if any, the amount of the payments due from the fund. A related issue concerns the priority of claims and/or whether certain claimants have waived or abandoned their claims.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, stipulations of the parties, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. One of the provisions of the Mortgage Brokerage Act, Chapter 494, Florida Statutes, provides that the Department of Banking and Finance (Department) is charged with the responsibility and duty of administering the Fund, which includes the duty to approve or deny applications for payment from the fund as set forth in Section 494.042(2), Florida Statutes. The "fund" was created in 1977 to provide recovery for any person who meets all of the conditions prescribed in section 494.043, Florida Statutes. The Department is obliged to disburse from the fund pursuant to section 494.044, Florida Statutes. Section 494.042, Florida Statutes (Supp. 1986) provides: (1)(a) Effective September 1, 1977, the Treasurer shall establish a Mortgage Brokerage. Guaranty Fund. A fee of $50 shall be added to the fee for both application and renewal of a mortgage brokerage business registration, and a fee of $10 shall be added to the fee for both application and renewal of mortgage broker licenses. This fee shall be in addition to the regular application or renewal fee and shall be transferred to or deposited in the Mortgage Brokerage Guaranty Fund. From October 1, 1985, until the balance in the fund first reaches the sum of $1.5 million, the fees provided for in paragraph (a) shall apply only to an applicant who has not previously been issued a license or registration under this chapter. If the fund at any time exceeds $1.5 million, collection of special fees for this fund shall be discontinued, and such special fees shall not be reimposed unless the fund is reduced below $500,000 by disbursement made in accordance with s. 494.044. (2) The Mortgage Brokerage Guaranty Fund shall be disbursed as provided in s. 494.044, upon approval by the division, to any party to a mortgage financing transaction who is adjudged by a Florida court of competent jurisdiction to have suffered monetary damages as a result of any violation of this chapter committed by a licensee or registrant. Section 494.043, Florida Statutes (Supp. 1986) provides: Any person who was a party to a mortgage financing transaction shall be eligible to seek recovery from the Mortgage Brokerage Guaranty Fund if: The person has recorded a final judgment issued by a Florida court of competent jurisdiction in any action wherein the cause of action was based on s. 494.042(2); The persona has caused to be issued a writ of execution upon such judgment and the officer executing the same has made a return showing that no personal or real property of the judgment debtor liable to be levied upon in satisfaction of the judgment can be found or that the amount realized on the sale of the judgment debtor's property pursuant to such execution was insufficient to satisfy the judgment; The person has made all reasonable searches and inquiries to ascertain whether the judgment debtor possesses real or personal property or other assets subject to being sold or applied in satisfaction of the judgment, and by his search he has discovered no property or assets or he has discovered property and assets and has taken all necessary action and proceedings for the application thereof to the judgment, but the amount thereby realized was insufficient to satisfy the judgment; The person has applied any amounts recovered from the judgment debtor, or from any other source, to the damages awarded by the court. The person, at the time the action was instituted, gave notice and provided a copy of the complaint to the division by certified mail; however, the requirement of a timely giving of notice may be waived by the department upon a showing of good cause; and The act for which recovery is sought occurred on or after September 1, 1977. Recovery of the increased benefits allowable pursuant to the amendments to S. 494.044 which are effective October 1, 1985, shall be based on a cause of action which arose on or after that date. The requirements of paragraphs (1)(a), (b), (c), and (e) are not applicable if the licensee or registrant upon which the claim is sought has filed for bankruptcy or has been adjudicated bankrupt; however, in such event the claimant shall file a proof of claim in the bankruptcy proceedings and shall notify the department by certified mail of the claim by enclosing a copy of the proof of claim and all supporting documents. Section 494.044, Florida Statutes, (Supp. 1986) provides: (1) Any person who meets all of the conditions prescribed in s. 494.043 may apply to the department for payment to be made to such person from the Mortgage Brokerage Guaranty Fund in the amount equal to the unsatisfied portion of that person's judgment or judgments or $20,000, whichever is less, but only to the extent and amount reflected in the judgment as being actual or compensatory damages. As to claims against any one licensee or registrant, payments shall be made to all persons meeting the requirements of s. 494.043 upon the expiration of 2 years from the date the first complete and valid notice is received by the department. Persons who give notice after 2 years from the date the first complete and valid notice is received and who otherwise comply with the conditions precedent to recovery may recover from any remaining portion of the $100,000 aggregate, in an amount equal to the unsatisfied portion of that person's judgment or $20,000, whichever is less, but only to the extent and amount reflected in the judgment as being actual or compensatory damages, with claims being paid in the order notice is received until the $100,000 aggregate has been fully disbursed. * * * (3) Payments for claims shall be limited in the aggregate to $100,000, regardless of the number of claimants involved, against any one mortgage broker or registrant. If the total claims exceed the aggregate limit of $100,000, the department shall prorate the payment based on the ratio that the person's claim bears to the total claims filed. Licensees Apt and Caldwell have filed for bankruptcy. Accordingly, claimants whose claims were unperfected as of September 1, 1986 are not required to satisfy the requirements of section 494.043(1), Florida Statutes (Supp. 1986). However, pursuant to subsection 494.043(2)(Supp. 1986), claimants must provide the Department a proof of claim by certified mail. All claimants proceeding against licensees Schleusener, Sprague, Wright and Backhoff are required to satisfy section 494.043(1) as there is no showing that they have filed for bankruptcy. At all times material hereto, Petitioners, Apt Mortgage Corporation, Lee Caldwell, Beverly Backhoff, Wilma Sprague and Harry Wright were licensed Mortgage Brokers under Chapter 494, Florida Statutes, having been issued licenses by the Department. On March 30, 1987, the Department received a letter dated March 27, 1987 from attorney John C. Rayson, Esquire on behalf of the Zinni Claim against Lee Caldwell with the attached proof of claim. Thereafter on March 31, 1987, the Department's counsel, in conversation with attorney Rayson's secretary, was advised that the proof of claim letter mailed to the Department respecting the Zinni's was sent by certified mail but that the returned receipt part had fallen from the letter. An examination of the envelope submitted reveals that the letter was, in fact, sent by certified mail and contained the proper proof of claim. Additionally, by certified letter dated March 31, 1987, the Department received on April 2, 1987, a second letter from John C. Rayson on behalf of the Zinni's, against Caldwell with the attached "proof of claim". On March 30, 1987, the Department received by certified mail from Stephen F. Kessler, Esquire, on behalf of the Campbell and Ferdinand Claims: Schlaugat Claim. On October 14, 1986, the Department received by certified mail an Amended Complaint against Apt in Case No. 86 15853CB, which was filed on August 29, 1986. On March 23, 1987, the Department received by certified mail a recorded Final Declaratory Judgment in Case No. 86-15853CB against Apt in the principal amount of $50,000 plus 18 percent interest from January 18, 1984. On March 16, 1987, the Department received an Amended Complaint against Backhoff in Case No. 86-15856CH. On March 16, 1987, the Department received an Amended Complaint against Schleusener, Caldwell, Wright and Sprague in Case No. 86-11072CY. Hebl Claim. On October 14, 1986, the Department received by certified mail an Amended Complaint against Apt in Case No. 86-15853 CB, which was filed on August 29, 1986. On March 23, 1987, the Department received, by certified mail, a recorded Final Judgment in Case No. 86-15853 CB against Apt in the principal amount of $10,000 plus interest at 18 percent from December 29, 1983. Holdheim Claim. By certified mail dated March 27, 1987, the Department received a letter on April 3, 1987 from Attorney Arthur N. Wolff, on behalf of Evelyn M. Holdheim with the attached documents: Proof of Claim by Evelyn M. Holdheim against Doretha Lee Caldwell, Balloon Mortgage Note dated April 11, 1983, Complaint in Foreclosure in the 17th Judicial Circuit, Case No. 84- 7037CV by Evelyn M. Holdheim against Ernest Schleusener and Doretha Lee Caldwell, Mortgage Deed dated April 11, 1983, Proof of Claim; acceptance or rejection of claim by Evelyn M. Holdheim against Doretha Lee Caldwell, Letter dated March 31, 1987, by attorney Arthur N. Wolff to Clerk of U.S. Bankruptcy Court, Proposed Order and Motion. On October 15, 1986, the Department received a recorded Final Judgment against Schleusener, Case No. 84-7037 CV, which has been assigned to the Department. On April 27, 1987, the Department received a Withdrawal of Motion regarding Caldwell in the Bankruptcy Court wherein it is represented that it would be a useless effort to proceed against Caldwell in Case No. 84-7037 CV. See Exhibit A. Fuhrman and LaCotche Certified mail notice that an action will be instituted against Apt received by the Department on May 4, 1984. Complaint against Apt, Case No. 84-15882, was received by the Department on October 3, 1985. Complaint filed July 12, 1984. On October 15, 1987, the Fuhrman and LaCotche claims were dismissed from circuit court for lack of prosecution. Campbell Claim. On March 30, 1987, the Department received by certified mail: Proof of Claim by L. D. Mervyn Campbell against Doretha Lee Caldwell. Partial Final Judgment in the Circuit Court of the 17th Judicial Circuit against Doretha Lee Caldwell entered on August 4, 1986, Proof of Claim by Cecil Ferdinand against Doretha Lee Caldwell, Partial Final Judgment in the Circuit Court of the 17th Judicial Circuit against Doretha Lee Caldwell was entered on August 4, 1986, Proof of Claim by L. D. Mervyn Campbell against Apt, Proof of claim by Cecil Ferdinand against Apt. A Proof of Claim regarding Caldwell in the federal bankruptcy court, Case No. 85-01060, and a Partial Final Judgment against Caldwell in Case No. 86- 11362 DF, and A Proof of Claim against Apt in the federal bankruptcy court, Case No. 84-01247. Ferdinand Claim. On March 30, 1987, the Department received by certified mail: A Proof of Claim regarding Caldwell in the federal bankruptcy court, Case No. 85-01060, and a partial Final Judgment against Caldwell in Case No. 84- 11149 Co, and 39 . A Proof of Claim against Apt in the federal bankruptcy court, Case No. 84-01247. Stuart, Kutik and Marques Claim No significant documentation has been filed with the Department. Paine Complaint against Schleusener, Caldwell, Wright, Backhoff and Sprague, Case No. 84-18235 CX, received by the Department on August 29, 1984. Complaint filed August 8, 1984. 1/ Notice by certified mail received by the Department on September 10, 1984. Schiavone et al. Claim Certified mail notice of an action against Apt, Schleusener, Sprague, and Wright received by Department on March 22, 1985. Certified mail notice with complaint against Schleusener, Caldwell, Wright, and Sprague, received by the Department on April 14, 1986. Case No. unknown. Zinni Certified mail notice against Apt, Schleusener, Caldwell, Wright received by the Department on April 8, 1985. Complaint filed on April 18, 1984. Final Summary Judgment, Case No. 84-8669 CG, entered on June 24, 1986, against Caldwell and Wright. Turner Certified mail notice with complaint against Apt, Caldwell, Wright, and Sprague, Case No. 85-28746 CM, received by the Department on January 8, 1986. Complaint filed November 21, 1985. Mitchell Claim No significant documentation has been filed with the Department. Anglada Claim On July 3, 1986, the Department received certified mail notice of an action against Sprague, Case No. 85-6531, which was filed on July 15, 1985. Complaint, Case No. 85-6531, against Sprague and Wright received by Department on August 4, 1986. Judgment against Wright and Sprague entered on July 7, 1986. Certified mail notice of a judgment against Wright received by Department on August 18, 1986. Writ of Executions against Sprague and Wright returned nulla bona on September 3, 1986. Interrogatories served on August 1986, have not been answered and Certificate of Non-Attendance at Depositions of Sprague and Wright dated September 2, 1986. Judgment recorded October 9, 1986. Proof of Claim against Debtor Apt, Case No. 84-01247, dated September 9, 1984, in the Bankruptcy Court received by the Department on August 18, 1986, by regular mail. Smith Proof of Claim against Debtor Apt, Case No. 84-01247, dated August 28, 1984, in Bankruptcy Court received by the Department on October 6, 1986, by certified mail. Certified mail notice of an action against Caldwell, Wright Sprague, and Apt received by the Department on November 5, 1986. Case No. Unknown. APT/SCHLEUSENER 2/ Date certified Mail Received Claimant(s) Case No., if Known, and Proof of Claim Claim Amount 1. 3/29/84 Schlaugat 86-15853CB against Apt $10,000* 2. 5/4/84 Fuhrman & LaCotche 84-15882 against Apt 10,000 3. 9/10/84 Paine 84-18235CX against Schleusener 10,000 4. 3/22/85 D&R Schiavone Suit against 10,000 Paul, Schleusener 10,000 Miller, 10,000 Barron, 10,000 Margerite 10,000 5. 4/8/85 Zinni 84-8669CG against Schleusener 10,000* 6. 1/8/86 Turner 85-28746CM against Apt 10,000 7 a. b. 8/1/86 8/1/86 Schlaugat Hebl 86-11072CY against Schleusener 86-11072CY against 10,000* 10,000* c. 8/1/86 Schlaugat Schleusener Apt Proof of Claim 10,000* d. 8/1/86 Hebl Apt Proof of Claim 10,000* 8. 10/6/86 Smith Apt Proof of Claim 10,000* 9. 10/14/86 Hebl 86-15853 CB against Apt 10,000* 10. 11/5/86 Smith Against Apt 10,000* 11 a. 3/30/87 Zinni Apt Proof of Claim 10,000* b. 3/30/87 Campbell Apt Proof of Claim 10,000 c. 3/30/87 Ferdinand Apt Proof of Claim 10,000 12. 4/2/87 Zinni Apt Proof of Claim 10,000* CALDWELL Case No., if Date Certified Mail Received Claimant(s) Known, and Proof of Claim Claim Amount 1. 5/22/84 Campbell 84-11362DF $10,000* 2. 5/24/84 Ferdinand 84-11149 10,000* 3. 9/10/84 Paine 84-18235CX 10,000 4. 4/8/85 Zinni 84-8669CG 10,000 5. 1/8/86 Turner 85-2876CM 10,000 6. 4/14/86 D&R Schiavone unknown 10,000 Paul, unknown 10,000 Miller, unknown 10,000 Barron, & unknown 10,000 Margerite unknown 10,000 7 a. 8/1/86 b. 8/1/86 Schlaugat Hebl 86-11072CY and Proof of 86-11072CY Claim 10,000 10,000 and Proof of Claim 8. 11/5/1986 Smith Case No. unknown 10,000 9 a. 3/30/87 Campbell Proof of Claim 10,000* b. 3/30/87 Ferdinand Proof of Claim 10,000* SPRAGUE Date Certified Mail Received Claimant(s) Case NO. Claim Amount 1. 9/10/84 Paine 84-18235CX $10,000 2. 3/22/85 D&R Schiavone, unknown 10,000 Paul, unknown 10,000 Miller, unknown 10,000 Barron, unknown 10,000 & Margerite unknown 10,000 3. 1/8/86 Turner 85-28746CM 10,000 4. 7/3/86 Anglada 85-6531 10,000 5 a. 8/1/86 Schlaugat 86-11072CY 10,000 b. 8/1/86 Hebl 86-11072CY 10,000 6. 11/5/86 Smith unknown 10,000 D. BACKHOFF Date Certified Mail Received Claimant(s) Case No. Claim Amount 1. 9/10/84 Paine 84-18235CX $10,000 2. 7/22/86 Schlauqat 86-15856CH 10,000 3 a. 9/8/86 Campbell 86-10964CK 10,000 b. 9/8/86 Ferdinand 86-10964CK 10,000 E. WRIGHT Date Certified Mail Received Claimant(s) Case No. Claim Amount 1. 9/10/87 Paine 84-18235CX $10,000 2. 3/22/85 D&R Schiavone, unknown 10,000 Paul, unknown 10,000 Miller, unknown 10,000 Barron, & unknown 10,000 Margerite unknown 10,000 3. 4/8/85 Zinni 84-8669CG 10,000 4. 1/8/86 Turner 85-28746CM 10,000 5 a. 8/1/86 Schlaugat 86-11072CY 10,000 b. 8/1/86 Hebl 86-11072CY 10,000 6. 8/4/86 Anglada 86-6531 10,000 7. 11/5/86 Smith unknown 10,000 III STATUS OF CLAIMS NOT PERFECTED WITHIN TWO-YEAR PERIOD APT/SCHLEUSENER Claimant(s) Provisions Satisfied Provisions Not satisfied 1. Schlaugat s. 494.042(2), 494.043(1)(f) 494.043(2) (Supp. 1986) & s. 494.044(2) 2. Furhman & LaCotche 494.043(1)(f) 494.042(2), (Supp. 1986) 494.043(2), & 494.044(2) (Supp. 1986) 3. Paine 494.043(1)(e) & (f)(Supp. 1986) 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) 4. D&R Schiavone, Paul, Miller, 494.043(1)(e) & 494.043(1)(a)-(d) Barron, & Margerite (f)(Supp. 1986) & 494.044(2) (Supp. 1986) 5. Zinni 494.043(1)(e) (Sup. 1986) & (f) 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) 6. Turner 494.043(1)(f) (Supp. 1986) 494.042(2), 494.043(2), & 494.044(2) (Supp. 1986) 7 a. b. Schlaugat Hebl 494.043(1)(e) (Supp. 1986) 494.043(1)(e) & & (f) (f) 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) 494.043(1)(a)-(d) c. Schlaugat (Supp. 1986) See paragraph 1 & 494.044(2) (Supp. 1986) d. Hebl 494.043(1)(f) (Supp. 1986) & (2) 494.042(2) & 494.044(2) (Supp. 1986) 8. Smith 494.043(1)(f) (Supp. 1986) & (2) 494.042(2) & 494.044(2) (Supp. 1986) 9. Hebl 494.042(2) & 494.043(1)(f) & (2) 494.044(2) (Supp. 1986) (Supp. 1986) 10. Smith 494.043(1)(f) (Supp. 1986) & (2) 494.042(2) & 494.044(2) (Supp. 1986) 11 a. b. c. Zinni Campbell Ferdinand 494.043 (1)(f) & (2) (Supp. 1986) 494.043(1)(f) & (2) (Supp. 1986) 494.043(1)(f) & (2) (Supp. 1986) 494.042(2) & 494.044(2) (Supp. 1986) 494.042(2) & 494.044(2) (Supp. 1986) 494.042(2) & 494.044(2) (Supp. 1986) Zinni See paragraph 11a CALDWELL Claimant(s) Provisions Satisfied Provisions Not Satisfied 1. Campbell s. 494.042(2) & 494.043 (1)(f) & (2) - (Supp. 1986) s. 494.044(2) (Supp. 1986) 2. Ferdinand 494.042(2) & 494.043 (1)(f) & (2)(Supp. 1986) 494.044(2) (Supp. 1986) 3. Paine 494.043(1)(f)(Supp. 1986) 494.042(2), 494.043(2), & 494.044(2) (Supp. 1986) 4. Zinni 494.042(2) & 494.043(1)(f) (Supp. 1986) 494.043(2) & 494.044(2) (Supp. 1986) 5. Turner 494.043(1)(f) (Supp. 1986) 494.042(2), 494.043(2), & 494.044(2) (Sup. 1986) 6. D&R Schiavone, 494.043(1)(f) Paul, Miller, (Supp. 1986) Barron, & Margerite 494.042(2), 494.043(2) & 494.044(2) (Supp. 1986) 7 a. b. Schlaugat Hebl 494.043(1)(f) (Supp. 1986) 494.043(1)(f) & & (2) (2) 494.042(2) & 494.044(2) (Supp. 1986) 494.042(2) & c. Schlaugat (Supp. 1986) 494.043(1)(f) & (2) 494.044(2) (Supp. 1986) 494.042(2) & (Supp. 1986) 494.044(2) (Supp. 1986) d. Hebl 494.043 (1)(f) (Supp. 1986) & (2) 494.042(2) & 494.044 (2) (Supp. 1986) 8. Smith 494.043(1)(f) (Supp. 1986) 494.042(2), 494.043(2) & 494.044(2) (Supp. 1986) SPRAGUE Claimant(s) Provisions Satisfied Provisions Not Satisfied 1. Paine s. 494.043(1)(e) (Supp. 1986) & (f) 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) 2. D&R Schiavone, Paul, Miller, Barron, & Margerite 494.043(1)(e) (Supp. 1986) & (f) 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) 3. Turner 494.043(1)(e) (Supp. 1986) & (f) 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) 4. Anglada 494.043(1) (Supp. 1986) 494.044(2) (Supp. 1986) 5 a. Schlaugat 494.043(1)(e) (Supp. 1986) & (f) 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) b. Hebl 494.043 (1)(e) & (f) (Supp. 1986) 494.043(1)(a)-(d) & 494.044(2) (Supp. 1986) 6. Smith 494.043(1)(e) & (f) 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2) (Supp. 1986) BACKHOFF Provisions Provisions Claimant(s) Satisfied Not Satisfied 1. Paine s. 494.043(1)(e) & (f) s. 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2) (Supp. 1986) 2. Schlaugat 494.043(1)(e) & (f) 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2) (Supp. 1986) 3 a. Campbell 494.043(1)(e) & (f) 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2) (Supp. 1986) b. Ferdinand 494.043(1)(e) & (f) 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2) (Supp. 1986) WRIGHT Provisions Provisions Claimant(s) Satisfied Not Satisfied 1. Paine s. 494.043(1)(e) & (f) s. 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2) (Supp. 1986) 2. D&R Schiavone, 494.043(1)(e) & (f) 494.043(1)(a)-(d) Paul, Miller, (Supp. 1986) & 494.044(2) Barron, & (Supp. 1986) Margerite 3. Zinni 494.043(1)(a), (e) & 494.043(1)(b), (c) (f)(Supp. 1986) & (d) & 494.044 (2)(Supp. 1986) 4. Turner 494.0431)(e) & (f) 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2)(Supp. 1986) 5 a. Schlaugat 494.043(1)(e) & (f) 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2)(Supp. 1986) b. Hebl 494.043(1)(e) & (f) 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2)(Supp. 1986) 6. Anglada 494.043(1)(Supp. 494.044(2) 1986) (Supp. 1986) 7. Smith 494.043(1)(e) & (f) 494.043(1)(a)-(d) (Supp. 1986) & 494.044(2)(Supp. 1986) *Although some claimants have filed more than one notice by certified mail, pursuant to Fla. Stat. Section 494.044(1), each claimant is only entitled to $10,000 per licensee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Banking and Finance, Office of Comptroller, enter a Final Order determining that claimants Holdheim, Schlaugat, Hebl, Campbell, Ferdinand, Anglada perfected their claims against the licensees as noted herein. Such claimants are entitled to recover from the fund the statutory limit in effect at the time of $10,000 per licensee since the cause of action for each claimant commenced before October 1, 1985. As to all remaining claimants whose claims were not perfected within the two (2) year period but have since completed all prerequisites for recovery from the fund, it is recommended that the Department evaluate such claims at this time and take appropriate action. 3/ DONE and RECOMMENDED this 14th day of December, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1987.
The Issue This case was presented on an administrative complaint filed by the Florida Real Estate Commission against Florida Vantage Properties, Inc. and Richard Stewart Grimes, alleging that the Respondents were guilty of violation of Section 475.42(1)(j), Florida Statutes, by having placed or caused to be placed upon the public records of Palm Beach County, a written document which purports to effect the title of, or encumber, real property; and the recording of which was not duly authorizod by the owner of the property and for the purpose of collecting or coercing the money to the Respondents. The Florida Real Estate Commission introduced evidence that the Respondent Grimes, in behalf of the Respondent Florida Vantage Properties, Inc., (hereafter Vantage) filed an affidavit with an attached letter of agreement, which was Introduced and received into evidence as Exhibit 2, in the public records of Palm Beach County. The Florida Real Estate Commission introduced other evidence that Grimes caused those documents to be placed upon public records of Palm Beach County without the authority of the owner of the property which was the subject of the documents and for the purpose of collecting or coercing the payment of money to the Respondents. The Respondents introduced evidence concerning the documents which had been placed on the public records of Palm Beach, County concerning their original execution, purpose, and circumstances surrounding their having been placed upon the public records. Based upon the evidence presented, the issue of fact presented in this case is whether the affidavit and letter of agreement (Exhibit 2) purports to effect the title of or encumber the subject real property?
Findings Of Fact Richard Stewart Grimes and Florida Vantage Properties, Inc. are registered real estate brokers holding registrations issued by the Florida Real Estate Commission. Grimes, together with his two co-owners, sold C.W. Collins Corporation, hereafter Collins Corp., the following real property pursuant to a deposit receipt contract executed on August 20, 1973 and identified and introduced into evidence as Exhibit 4. Lot 6, Block 2, & Lots 5, 9, & 11, Block 5, Carriage Hill, as recorded in Plat Book 30, Pages 67 & 68 of the Public Records of Palm Beach County. The deposit receipt contract (Exhibit 4) was the product of negotiations entered into between Collins Corp. and Grimes and his co-owners. These negotiations had resulted in the execution of a deposit receipt contract identified and received into evidence as Exhibit 6. This deposit receipt contract addressed the proposed purchase of six lots to include the four lots eventually sold pursuant to the deposit receipt contract (Exhibit 4). Also introduced and received into evidence was a letter of agreement covering the property described in the deposit receipt contract (Exhibit 6). This letter of agreement is the same in all respects as the latter of agreement in Exhibit 2 with the exception that it addressed the two additional lots which, were the subject of the deposit receipt contract (Exhibit 6). The evidence introduced, to include the exhibits referended above, show that a portion of the consideration for the sale of the property to Collins Corp. was the letter of agreement (Exhibit 2) which contained an exclusive right of sale for Vantage and a deferred payment agreement under which Collins Corp agreed to Pay Vantage $1,000 on each lot sold by Collins Corp. Both Grimes and Collins agreed that the exclusive right of sale had been terminated prior to the date Exhibit 2 was filed in the public records of Palm Beach County, November 6, 1975. However, Collins Corp. could not unilaterally terminate the deferred payment agreement expressed in the last sentence of the letter of agreement as follows: C. W. COLLINS CORP. may also sell the property themself (sic) and will then pay only a $1,000.00 fee to FLORIDA VANTAGE PROPERTIES, INC. on each lot or house and lot package at time of closing. Grimes, as chief officer of Vantage, consulted legal counsel when Collins Corp. failed to pay $1,000 to Vantage when the corporation sold the first lot. Grimes authorized counsel to take action to obtain payment of the monies due Vantage from Collins Corp. As a result, Grimes executed the affidavit of October 7, 1975 (Exhibit 2) and caused this to be placed on the public records of Palm Beach County by counsel for Vantage and Grimes. Neither the affidavit nor the letter of agreement assert any interest in the subject property and the filing in no way constituted a notice of lis pendens.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take no action on the complaint against Florida Vantage Properties, Inc. or Richard Stewart Crimes. DONE AND ORDERED this 4th day of August, 1975, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX The Respondent timely filed Proposed Findings of Fact (PFF) in this cause, which were considered by the Hearing Officer as follows: Paragraphs 1 and 2 of PFF are incorporated in paragraph 1 of the Recommended Order (RD). Paragraphs 3 and 4 of PFF are incorporated in paragraph 2 of the RD. Paragraph 5 of PFF is incorporated in paragraph 3 of the RD. Paragraphs 6, 7, 8 & 10 of PFF are incorporated in paragraph 4 of the RD. Paragraphs 9, 11, 12,13 and 14 are not material to consideration of the issue presented. Paragraph 15 is consistent with the ultimate conclusion of law reached in the RD. COPIES FURNISHED: John Huskins, Esquire Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Arthur C. Koske, Esquire Post Office Box 478 299 West Camino Gardens Blvd. Boca Raton, Florida 33432 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION CD 14999 Petitioner, PROGRESS DOCKET vs. NO. 3283 FLORIDA VANTAGE PROPERTIES, INC. and RICHARD STEWART GRIMES DOAH NO. 78-696 Respondents. PALM BEACH COUNTY /
The Issue Whether the decision to award the bid for Parcel No. 93S101, State Road 84 Spur, was in accordance with the governing rules and statutes or was arbitrary, capricious, or contrary to competition.
Findings Of Fact In October of 1993 the Respondent declared that a spur property located at State Road 84 (the subject matter of these proceedings) was a surplus parcel. Such property is comprised of two identifiable tracts identified in this record as parcel 101-A and parcel 101-B. The Respondent utilizes a manual entitled "Disposal of Surplus Real Property" as its guide for the procedures used to comply with statutory and rule provisions regarding the disposal of surplus parcels. Since 1993 the Department has made several attempts to market the spur property. Such attempts included offering parcel 101-A to the Petitioner for no consideration. As recently as October of 2000 the Department offered the spur property to the Petitioner at no cost. The offer did include some conditions but same did not materially affect whether or not Davie would or could accept the transfer. For whatever reasons, the Petitioner did not accept the offer. Subsequently, the Respondent withdrew the offer in writing. Additionally, the Respondent notified the Petitioner that it intended to make the spur property (both parcels) available to the public through the competitive bid process. It was contemplated that the bid process would allow any person from the public to competitively place bids for the subject property. Nevertheless, the Petitioner was advised that it would be given an opportunity to acquire the property. A letter of February 7, 2001, from the Department to the Petitioner advised the town of its right to acquire the property but did not in any manner prohibit or prevent the Town of Davie from bidding on the spur property. In fact, the Petitioner did not bid on the subject property. Further, the Petitioner did not and does not intend to purchase the subject property. The only way the Intervenor seeks to acquire the property is without cost. The Petitioner had actual knowledge of the Department's intention of making the property available through competitive bid. The Town of Davie did nothing to oppose the bid process. On May 30, 2001, the spur properties were advertised for competitive bidding with sealed bids to be opened by the Department on June 14, 2001. On June 21, 2001, the Town of Davie by and through its town administrator contacted the Department in order to exercise the town's right of refusal on the property. Accordingly, on June 25, 2001, the Respondent posted a notice stating it would reject all bids. On July 12, 2001, the Respondent notified the Petitioner that it had ten days to exercise its right to purchase the property. In connection with the proposed sale the Department offered the property to the Town of Davie at the approved appraised value of $1.9 million. The Petitioner made no counter-offer. Instead, on July 27, 2001, the Town of Davie responded to the offer stating it would accept the parcel for a public purpose for no consideration. Thereafter, the Respondent posted a "Revised Bid Tabulation" indicating it would award the spur property to the highest responsive bidder, the Intervenor. The Petitioner has not proposed to pay for the spur property. The Petitioner did not have an appraisal of the spur property prepared. The Petitioner did not bid on the spur property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order confirming the award of the spur property to the Intervenor. DONE AND ENTERED this 7th day of February, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 7th day of February, 2002. COPIES FURNISHED: Michael T. Burke, Esquire Johnson, Anselmo, Murdoch, Burke & George, P.A. 790 East Broward Boulevard, Suite 400 Post Office Box 030220 Fort Lauderdale, Florida 33303-0220 Joseph W. Lawrence, II, Esquire Vezina, Lawrence & Piscitelli, P.A. 350 East Las Olas Boulevard Suite 1130 Fort Lauderdale, Florida 33301 Brian F. McGrail, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Should Respondent's license as a real estate broker be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency charged with the responsibility of investigating and enforcing the provisions of Chapter 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate broker in the State of Florida, issued license number 0152815 in accordance with Chapter 475, Florida Statutes. Robert L. Purlee and Doris A. Purlee (Purlees) conveyed certain real property located at Unit 1303-A, Jamestown Condominiums, within Pinellas County, Florida, to Ralph F. Marotte and Eve K. Marotte (Marottes), on June 18, 1993, for an agreed upon sum of $15,000, with installments due over a period of 120 months, at the rate of $181,99 per month, beginning July 15, 1993. Since there was no express language in the deed to express a contrary intent, the conveyance to the Marottes created an estate by the entirety which was not available to answer for the individual debts of either of the tenants. The Marottes executed a mortgage and ad promissory note creating a lien against the property in favor of the Purlees, to secure the timely payment of the sum owed by the Marottes. At the time the Marottes purchased the property in question from the Purlees, there were no other liens or encumbrances against the property. At the time the deed was recorded, there was two personal judgments filed of record against Ralph F. Marotte, individually, but no personal judgments filed of record against Ralph F. Marotte and Eve K. Marotte, jointly or as husband and wife, or Eve K. Marotte, individually. Since no copies of these judgments, certified or otherwise, were introduced as evidence, and David Eaton appeared to be confused about these judgments, this finding is based on the testimony of Eve K. Marotte which I find credible. On November 10, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We are unable to financially own this unit, therefore, we wish to deed it back to you and your wife, and record it in the courthouse. Rather than go thru foreclosure proceedings and lawyer’s fees etc., thought the simplest best way for both of us is to just return the property back to you both, and have the tenant send her rent payment directly to you. We have prepared the deed - and after it is recorded - have the courthouse send it to you directly. (Emphasis Supplied) * * * On December 8, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: Attached is a copy of the Quit Claim Deed - which is being recorded and will be mailed to you directly. (Emphasis Supplied) * * * On January 6, 1994, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We went to the courthouse to record the deed, and realized that we did not take the mortgage off, so we are enclosing a satisfaction of mortgage, so that we can turn the property back to you- and you will then own it free and clear as you did before. As soon as we received this paper from you, will turn over everything, to you, that is, keys, etc. (Inventory remains the same). (Emphasis Supplied) * * * From the notation on the quit claim deed it appears that the Marottes attempted to record the deed at the courthouse but changed their mind as indicated in the letter. The Purlees executed the satisfaction of mortgage and posted it with the United States Postal Service for delivery to the Marottes. Subsequently, the Purlees discussed the matter with their attorney, David A. Eaton, who advised the Purlees to have the satisfaction of mortgage retrieved from the postal service. This was accomplished, and the Marottes did not receive the satisfaction of mortgage. Therefore, the Marottes did not record the quit claim deed transferring title back to the Purlees. Based on the testimony of Eve K. Marotte which I find credible, Eve K. Marotte continued in her effort to deed the property back to the Purlees, and even discussed the possibility of satisfying the personal judgments against Ralph F. Marotte in the process. In fact, Respondent even arranged for the sale of the property but that did not prove fruitful either. At the time the Marottes attempted to deed the property back to the Purlees, the Marottes did not advise the Purlees of the personal judgments against Ralph F. Marotte, individually. Since the conveyance of the property to the Marottes created an estate by the entirety, the property would not have been subject to any judgments against Ralph F. Marotte, individually upon the Marottes deeding the property back to the Purlees. There was no intent on the part of the Respondent to “saddle” the Purlees with Ralph F. Marotte’s personal judgments. Likewise, there was no intent on the part of Respondent to mislead or misrepresent the circumstances surrounding the attempt to “deed back” the property or to induce the Purlees to execute a satisfaction of mortgage so that the Marottes could record such satisfaction or mortgage without recording the quit claim deed and thereby have the property free and clear of the mortgage. Although the Marottes did make some of the mortgage payments, they did not make all of the payments as contemplated by the mortgage and promissory note. Their failure to make mortgage payments was due to their financial condition and not that the Marottes were intentionally attempting to deprive the Purlees of the property without paying for the property. The Marottes collected some rent from the property but apparently did not apply this money toward the mortgage payment. However, there was no evidence, other than the requirement of making the mortgage payments, that the Marottes were required to pay the rent over to the Purlees. On or about November 6. 1995, the Purlees filed a complaint with the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, against the Marottes alleging, inter alia, that Respondent committed fraud and dishonest dealing in a real estate transaction. On a Motion for Summary Judgment filed by the Purlees, the court entered a Final Judgment Against Licensed Real Estate Broker, Eve K. Marotte, for Monetary Damages Arising Out of Fraudulent Conduct in a Real Estate Brokerage Transaction on March 1, 1996. Additionally, the court entered a Final Judgment Against Eve K. Marotte and Ralph F. Marotte for the total sum of $95, 454.95 which included $22, 284.54 in actual damages, $66,853.62 in trouble damages pursuant to Section 772.11, Florida Statutes, $5,250.00 in attorney’s fees, and $1,066.79 in taxable costs. Because of this judgment and other financial and personal circumstances surrounding the Respondent’s life at that time, the Respondent filed for bankruptcy which eventually “wiped out” this judgment. Subsequently, the Purlees filed a separate proceeding for foreclosure of the mortgage, and obtained title to the property by foreclosure sale on or about August 1997. Between the time of the initiation of the foreclosure proceeding and gaining title to the property, the Purlees had a receiver appointed to receive the rent on the property. Although David Eaton testified that the Marottes failed to turn over rents during this period, there is insufficient evidence to show that the Marottes received any rent during this period or that the property was rented at all times during this period. Clearly, after engaging an attorney and obtaining the large judgment, the Purlees were not interested in taking the property back without the judgment being satisfied. Likewise, it is equally clear that Respondent was not financially able to pay the judgment. Respondent did not intentionally or otherwise misrepresent the facts in order to induce the Purlees to accept the deed back and release her from her obligation, or act in a fraudulent manner in order to convince the Purlees to release Respondent from her obligation, or act dishonestly in her dealings with the Purlees.
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 both Count I and Count II of the Administrative Complaint. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geofrrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Orlando, Florida 32801 Eve K. Marotte, pro se 2616 46th Terrace North St. Petersburg, Florida 33714
Findings Of Fact Respondent Shirley Holland was registered with Petitioner as a real estate salesman in January, 1976, associated with Vern Duncklee Real Estate and Insurance, Inc., Naples, Florida. He is presently registered as a real estate broker. (Stipulation) On January 5, 1976, W. H. Ragan gave the Duncklee firm a listing to sell real property consisting of approximately one and one-quarter acres located in Collier County, Florida, for a selling price of $7,500. Respondent was the listing salesman. (Testimony of Respondent, Ragan, Duncklee, Petitioner's Exhibit 6). Respondent also was a builder who operated as Holland Investment Company. It was his practice to purchase various properties, remodel existing structures on the same, and thereafter sell them at a profit. There was a two- room shed located on the Ragan property that had no inside finishing work, electricity, or septic tank. Respondent decided to take an option on the property in order to remodel it by adding a room and to place it in a habitable condition. He broached the subject to Ragan on January 6, 1976, and Ragan told him on January 7, that he was agreeable to such a contract. On January 8, Respondent and Ragan and his wife entered into a Sales Contract and Option to Buy for $7,500. The contract provided that closing would take place within twelve months and that the seller would give possession of the property to the purchaser on January 8, 1976. This was pursuant to an accompanying rental agreement dated January 8, 1976, between the parties for a period of twelve months which provided that Respondent could exercise his option at any time within the stated twelve-month period whereby all rents paid would be applied toward the down payment on the property of $1,900 which was to be made at closing of the sale. The rental agreement further provided that if Respondent did not exercise his option within the required time, any improvements made by him on the property during that period would be considered liquidated damages of the owner. Pursuant to these agreements, Respondent made a payment of $100 at the time they were executed, which represented an initial deposit on the contracts and as rent for first month of the term. The Option Agreement also gave Respondent authority to remodel the building on the property and it further reflected that Respondent was a registered real estate salesman and would be selling the property for profit. (Testimony of Respondent, Duncklee, Petitioner's Exhibits 5, 7) On January 5, 1976, Respondent showed Harold and Ruby Stacy several houses in the area that were for sale. On January 9, Respondent went by the Stacy residence to see if they were interested in any of the houses he had shown them. They were not interested in those houses and Respondent told them of property that he had recently acquired which was the Ragan property. He showed it to Mr. Stacy that night and the next day Mrs. Stacy went with him to look at the premises. During the course of their conversations, Respondent offered to rent the property to them for $100 for the period January 10 to February 1, 1976. It was his intention to rent it to them for $125 per month commencing in February on the condition that they clean and fix up the property. They also discussed the possibility of purchase at a later date. Respondent told them that he would sell to them for $13,000 if Harold Stacy would do the remodeling work on the shed with Respondent supplying the materials. Respondent quoted a possible sales price of $14,500 if he was obliged to provide both labor and materials for renovating the shed and providing for utility services. Respondent and the Stacys entered into a rental agreement on that day for the initial period of some three weeks and Ruby Stacy gave him a check dated January 10 for $100 with a notation thereon that it was a deposit on land. Respondent explained to Mrs. Stacy that he was merely renting the property at that time and added the word "rent" at the bottom of the check. (Testimony of Respondent, Petitioner's Exhibit 1, 2) Thereafter, the Stacys proceeded to clean the premises and commence installing a ceiling in the building located on the property. They also installed a septic tank. At some undisclosed date, Ragan came to the property to obtain some of his belongings and found the Stacys there. He learned that they supposedly had purchased the property from Respondent, Ragan was of the opinion that Respondent had purported to sell the property before he had obtained the option thereon and that he had therefore defrauded the Stacys. Ragan thereupon filed a complaint against Respondent with the local Board of Realtors in latter January, 1976. About the same time, Respondent had been in the process of obtaining local permits to install the septic tank and do the other work. He discovered that the Stacys had installed a septic tank without his authorization and without obtaining a permit. He thereupon, by letter of January 21, 1976, informed the Stacys that they had done work on the property without a building permit or approval of the County Health Department and therefore was refunding the rental payment of $100. He enclosed his check in that amount, dated January 21, 1976. Although Respondent later attempted to exercise his option to purchase the property, Ragan refused to fulfill the agreement and later sold the property to the Stacys himself for $7,500. (Testimony of Respondent, R. Stacy, Ragan, Petitioner's Exhibits 3,4) Mrs. Stacy testified at the hearing that she was under the impression that she and her husband had purchased the property in question on January 10, 1976, and that the $100 payment had been a deposit for such purchase. She was under the further impression that they were to make a $2,500 down payment in February to consummate the deal. She further testified that they made the improvements on the land because of their understanding that they were going to purchase it. Mrs. Stacy had never been involved in a prior purchase of real property and is unfamiliar with contract documents and terminology. It is found that Mrs. Stacy honestly believed that she and her husband had a valid agreement to purchase the property. Her testimony that she and her husband entered into the rental arrangement in January to enable them to work on the property until they could make the down payment in February is deemed credible. (Testimony of R. Stacy) Ragan and Respondent had been involved in a prior real estate transaction and Respondent testified that Ragan had not been satisfied with that transaction, but Ragan testified to the contrary. However, Ragan talked to Respondent's broker in January, 1976, about the Stacy situation, at which time Ragan stated that he had a chance to get even with Respondent for the prior transaction and that he was going to do so. (Testimony of Respondent, Ragan, Duncklee, D. Holland)
Recommendation That the Administrative complaint be dismissed. DONE and ENTERED this 8th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Ed R. Miller, Esquire Suite 212 - 1400 Gulf Shore Boulevard Naples, Florida 33940
The Issue There are two issues presented in this case. The first issue is whether a statement by the Department of Banking and Finance (the "Department"), denying joinder of multiple unrelated abandoned property claims, in a Final Order directed to Petitioner is an unpromulgated rule in violation of Section 120.54(1)(a), Florida Statutes. The second issue is whether the Department has a policy of delaying decisions on unclaimed property claims past the statutory 90th day, such that the policy constitutes an unpromulgated rule in violation of Section 120.54(1)(a), Florida Statutes.
Findings Of Fact The Department is the State agency responsible for administering the Florida Unclaimed Property Act, Chapter 717, Florida Statutes. As such, the Department is responsible for collecting and maintaining unclaimed property and processing claims for the return of the unclaimed property to its missing owners. The Department accomplishes this task through a staff composed of 12 full-time employees and 14 OPS employees. Individuals as well as private investigative agencies file claims for property held by the Department. Private investigative agencies account for appropriately 12 percent to 14 percent of the claims filed and approximately 38 percent to 42 percent of the property value returned to owners. The Department's Claims Process The Department has established internal procedures so that claims are processed timely, efficiently, and accurately. Claimants must submit claims in writing on a form supplied by the Department. The Department logs-in each claim on the day it is received. If the Department determines a claim is in compliance with Rules 3D-20.0021 and 3D-20.0022, Florida Administrative Code, and the proof submitted with the claim is sufficient to establish the claimant's ownership and entitlement to the funds, it is paid. If the Department determines that the claim is incomplete, within 5 to 15 days of its receipt of the claim, the Department sends the claimant a pre-screen letter advising the claimant of the additional information required to prove the claim. Rule 3D-20.0021(1), Florida Administrative Code. When the claimant resubmits the claim with the additional material that has been requested, the claim is re-logged into the computer and a 90th day is set. Rule 3D-20.0021(2), Florida Administrative Code. Claims supervisors receive a daily computer report alerting them of the claims which are 61 days old and aging. They receive high priority. Complex claims which are submitted with initial insufficient proof are referred to the legal department for review and resolution. During fiscal year 1999/2000 the Department processed and approved approximately 107,000 claims having an aggregate value of approximately $67 million. Throughout the review process, the Department assists claimants in developing the proof necessary to prove the claim in lieu of summarily denying the claim. In mid-1999, the Department's Unclaimed Property Program went on-line, which significantly increased the number of claims filed. From around July 1, 1999 through December 31, 2000, the Department processed claims for approximately 132,900 unclaimed property accounts. The statutory 90-day period for determination was exceeded for an estimated 5000 of those accounts: 1,146 claims were denied and 3,991 claims were approved. However, of those 3991 approved accounts, 1,254 accounts were from an extended project with the FDIC which took about a year to complete. In sum, excluding the 1,254 FDIC accounts, the Department exceeded the 90th day on approximately 3 percent of the claims filed during this period. The Petitioner Petitioner is a licensed private investigator who specializes in the recovery of unclaimed property held by the Comptroller's office. Petitioner maintains both an individual and an agency license to engage in the business of locating missing owners of unclaimed property. He has been licensed by the Florida Department of State as a private investigator since 1993. In the course of Petitioner's business, his clients sign a form agreement which authorizes Petitioner to represent the client in recovering the abandoned property held by the Comptroller's Office. Petitioner represents the client through the entire claims process until the claim is either paid to his trust account or denied. If the claim is paid, Petitioner deducts his fractional share and costs and forwards the net value of the claim to the client. If the claim is denied, Petitioner's agreement with his client authorizes him to file a request for hearing on the client's behalf. Petitioner's Agreement Form Petitioner's agreement states that Petitioner has located property which may belong to the client, and pending the requisite proof of ownership, that Petitioner will recover the property for the client. The agreement provides that for his services, the "Agent is assigned a fee of 30 percent" and further provides that the agreement is an "irrevocable limited power of attorney." Lastly, the agreement recites that in any dispute between Petitioner and his client, "proper venue is in Volusia County, Florida." Petitioner's Business Since 1998, Petitioner has filed claims for approximately 3,000 unclaimed property accounts. Of those 3,000 accounts, 152, roughly 5 percent of Petitioner's claims, have exceeded the 90-day determination period. Petitioner files claims for all types of unclaimed property, but primarily involving dissolved corporations. Because of the nature of his business niche, Petitioner's claims are often more complex because they involve older accounts, lost or destroyed corporate documents, and archived banking information. Moreover, a decision by a bankruptcy trustee about whether or not to reopen a bankruptcy estate may also be needed to establish entitlement to the property, if the company was liquidated through a bankruptcy proceeding. Claimants, including Petitioner, routinely request the Department's assistance in obtaining additional information from the reporting company in order to establish ownership and entitlement on behalf of their client. Prior to August 2000, Petitioner had not requested the Department provide a denial letter of any of his claims in which the 90th day had exhausted while additional information was gathered. The Controversy In August 2000, Petitioner had six claims, representing four separate clients, pending with the Department, all of which were over the 90 days. In each case the Department determined the evidence provided was insufficient to establish the client's ownership of the property. Over the months during which these claims were pending, Petitioner met with the Department on several occasions to address the proof issues. On August 9, 2000, the Department sent Petitioner a letter outlining the deficiencies in each of the four files and advising Petitioner that unless he could provide the evidence needed by August 25, 2000, the Department would deny each claim. Petitioner faxed a letter dated September 7, 2000, to the Department stating he would be out of the country during the month of September and requested that the denials for the files listed in the August 9, 2000, letter be held until after he returned home on September 26, 2000. Petitioner's letter also requested that the "DOAH hearing be held in Daytona Beach, Florida, when each of the hearings takes place." To accommodate Petitioner's request, the Department delayed issuing the Individual Notices of Intent to Deny each of the four claims until October 3, 2000. Petitioner timely responded to the four denials with a single Petition for Hearing, attempting to consolidate the four unrelated cases. On November 27, 2000, the Department entered an Order denying his Petition for failure to comply with the Florida Administrative Code and granted Petitioner 20 days in which to re-file a conforming petition. The Order also advised Petitioner that consolidating these unrelated cases was inappropriate. On December 1, 2000, Petitioner signed and mailed the instant Rule Challenge, which specifically identified these four files. It was received by DOAH on December 6, 2000. On December 1, 2000, the same day the Rule Challenge was mailed to DOAH, Petitioner and Respondent entered into a standstill agreement, tolling all matters related to these four files as well as several other files. The agreement was reduced to writing and signed on December 7 and 8, 2000. On December 13, 2000, Petitioner and his attorney again met with the Department to discuss the evidence required to prove the claims in these four files. The Challenged Statement Petitioner challenges the "joinder" statement in the Department's Order which advised him that "it is inappropriate to consolidate four unrelated cases in a single Petition for Hearing." Petitioner contends this statement is a rule which has not been adopted pursuant to Section 120.54, Florida Statutes. He further contends that the statement as applied is contrary to Rule 1.110(g), Florida Rules of Civil Procedure. The Challenged Policy As a separate but related matter, Petitioner also asserts that the Department has a tacit policy of delaying determinations on claims past the 90th day. Petitioner argues that the effect of this policy is to deny the claimant a point of entry into administrative proceedings. He contends that this policy has the force of a rule which has not been adopted pursuant to Section 120.54, Florida Statutes. Sanctions The Department requested that attorneys' fees be assessed against Petitioner. The Department incorrectly asserts this matter is completely without merit and was brought for an improper purpose, namely, to harass.
The Issue The issue presented is whether Petitioner's application for licensure as a real estate sales associate should be granted.
Findings Of Fact On his application for licensure as a real estate sales associate Petitioner answered in the affirmative to question numbered 1 requesting background information. Question numbered 1 reads, in part, as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication? On January 30, 2000, Petitioner, who had just turned 19 years of age, was arrested for grand theft, loitering and prowling, resisting arrest without violence, and burglary of an unoccupied structure. The affidavit forming the basis for the charges indicates that a police officer saw Petitioner standing next to a truck, that a window in the truck had been broken and the truck had been burglarized, that several items of property that had been removed from the truck were on the ground next to the truck and Petitioner, that Petitioner ran away from the police officer, and that he was apprehended after a pursuit on foot. Petitioner subsequently pled guilty, and adjudication was withheld. He was sentenced to one year of community control, which was followed by two years of probation, 80 hours of community service, and restitution in the amount of $200 for the truck window he broke. On March 14, 2000, Petitioner was arrested and charged with criminal mischief over $1,000, a third-degree felony. He was driving his motor vehicle around on a golf course. The affidavit forming the basis of the charge states that the damage was done willfully and maliciously. Petitioner pled guilty. The record in this cause suggests that adjudication was withheld but is not clear as to the sentence that was imposed. On July 30, 2002, Petitioner violated his probation with some type of traffic offense. His probation was extended and additional community service hours were required of him. Petitioner's probation was terminated on March 13, 2003. By letter dated September 7, 2004, the Department directed Petitioner to submit three letters of recommendation and to appear at the October 20, 2004, meeting of the Florida Real Estate Commission in support of his application. Although Petitioner received that letter, he failed to submit any letters of recommendation and failed to appear at the Commission's meeting. At the time of the final hearing in this cause Petitioner was employed in pharmaceutical sales and was engaged to be married.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 29th day of June, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 29th day of June, 2005. COPIES FURNISHED: Daniel Villazon, Esquire Daniel Villazon, P.A. 419 West Vine Street Kissimmee, Florida 34741 Barbara Rockhill Edwards, Esquire Department of Legal Affairs Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Watkins, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802, North Orlando, Florida 32801
