03-001738 Marta Mantecon Comas vs. Department Of Financial Services, Office Of Financial Regulation Status: Closed Recommended Order on Tuesday, September 30, 2003.

Summary: Applicant for relicensure as a mortgage broker has not shown rehabilitation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTA MANTECON COMAS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1738

)

DEPARTMENT OF FINANCIAL SERVICES, )

OFFICE OF FINANCIAL REGULATION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on July 23 and 24, 2003, in Miami, Florida, before Florence

Snyder Rivas, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Richard B. Marx, Esquire

Law Offices of Richard B. Marx &

Associates

66 West Flagler Street, Second Floor

Miami, Florida 33130

For Respondent: James H. Harris, Esquire

Department of Financial Servi ces

200 East Gaines Street

Tallahassee, Florida 32399 - 0350

STATEMENT OF THE ISSUE

Whether Petitioner has been rehabilitated sufficiently to

warrant relicensing as a mortgage broker.

PRELIMINARY STATEMENT

Petiti oner Marta Mantecon Comas (Petitioner or Comas)

formerly held a mortgage broker’s license which was revoked on

June 25, 2001, by the Department of Banking and Finance,

statutory predecessor to Respondent Department of Financial

Services, Office of Financi al Regulation (OFR). The

revocation was affirmed following an appeal to the Third

District Court of Appeal.

Thereafter, Comas applied for relicensing as a mortgage

broker. By letter dated March 17, 2003, OFR denied her

application.

Comas timely reque sted an administrative hearing to

challenge the denial. A final hearing was held on July 23 and

24, 2003.

The identity of witnesses and attendant rulings is set

forth in the record of the proceedings.

Petitioner offered eleven exhibits, and Respondent

off ered seven exhibits. At the conclusion of the hearing, the

parties were afforded the opportunity to submit proposed

recommended orders on or before ten days after the transcript

of the final hearing was filed. The parties later requested

and were granted an enlargement of time until September 22,

2003.

A transcript of the hearing was filed in two volumes on

September 2, 2003. Proposed recommended orders were submitted

and carefully considered in the preparation of this

Recommended Order.

It is noted th at Petitioner's Proposed Recommended Order

includes a "Statement of the Issues" which arguably conflicts

with the parties' stipulation (at page 266 of the transcript)

regarding the issue of ultimate fact to be determined in this

forum. Petitioner has not filed any motion directed to

amending the stipulation.

This apparent discrepancy is of no consequence because

the record, viewed in the context of relevant statutory and

case law, supports the conclusion that the parties'

stipulation is, in fact, a correct statement of the issue.

However, even if one accepts Petitioner's post - hearing

characterization of the issue(s), it would make no difference

to the result reached here. 1

All citations are to Florida Statutes (2002) unless

otherwise indicated.

FINDINGS OF FACT

1. OFR is the state agency charged with the duty to

license, discipline and regulate persons engaged in the

business of mortgage brokering and mortgage lending pursuant

to Chapter 494.

2. Comas was first licensed as a mortgage broker on

June 16, 1 997. Her license was properly revoked by OFR's

statutory predecessor on June 25, 2002.

3. Three months later, on October 8, 2002, Comas

reapplied for licensure. It is undisputed that she meets the

educational and technical requirements for licensure at

relevant times. The only issue is whether Comas has

rehabilitated herself following the events which led to her

license revocation.

4. For the reasons set forth below, the record

overwhelmingly establishes that Comas has not been

rehabilitated and shoul d not be relicensed as a mortgage

broker.

5. This is at least the third forum in which Comas has

tried to portray herself as a victim of an unreasonable,

impossible - to - please client, a dishonest boss, an incompetent

lawyer, and inept or overzealous regul ators.

6. To the contrary, the evidence established that Comas

has never acknowledged that she and she alone is responsible

for losing her license. After years in which to reflect upon

the conduct which caused the state to take her license, Comas

continu es to attempt, unconvincingly, to justify her actions

at the expense of those she victimized.

7. Comas timely exercised her due process rights to

challenge the decision of state regulators to revoke her

mortgage broker license. In so doing, she generated an

appellate decision which concisely sets forth the conduct from

which, to be relicensed, she must demonstrate rehabilitation.

8. In Comas v. Department of Banking and Finance , 820

So.2d 1088 (Fla. 3d DCA 2002), the court affirmed the license

revocation and said of this Petitioner:

Appellant's conduct in altering a

customer check, depositing it in her

personal account, and later writing a

letter to the customer on company

letterhead falsely stating that the funds

were in the hands of the title company

jeopardized not only the customer, but also

her employer and the title company. This

conduct violates the numerous statutory

provisions referenced in the Final Order,

casts considerable doubt on either

Appellant's competence, integrity, or both,

and clea rly warrants license revocation.

9. In the foregoing passage, the customer referred to by

the Third District is Sherry Lynn Sipple (Sipple), and the

employer is Marc Mazis (Mazis). Both testified at the

administrative hearing regarding the events summar ized by the

Third District and referred to collectively here as the

“Sippel transaction.”

10. At the time of the Sipple transaction, Comas had

been licensed as a mortgage broker for less than two years.

11. Sippel was a first - time home buyer. She was seeking

a fixed rate mortgage and engaged Comas to assist her. Sipple

hoped for the lowest interest rate possible, but was willing

to go as high as seven percent in order to achieve the

predictability of a fixed rate mortgage.

12. Like most first - time ho me buyers, Sipple was

nervous, and relied heavily upon the professional expertise

and trustworthiness of Comas, as she was entitled to do.

13. Unlike most first - time homebuyers, Sipple read the

documents she was given. She would not supinely take Comas'

word about matters related to the transaction and insisted

upon documentation.

14. For being prudent about her money, Sipple has earned

Comas' hostility as a "difficult customer." The hearing was

suffused with testimony from Comas' associates and frien ds

reflecting the manner in which Comas' had complained about

Sipple.

15. This passage from the testimony of Comas' husband

provides insight into the manner in which Comas' has sought to

justify her behavior to third parties:

A What do I recall that she said?

Q If she said anything about it?

A Starting from unhappy client,

unreasonable, she called the client before

the closing. I remember things like that.

Then the client and Marc getting the money

to the client and then her refusing to give

the cli ent the money. I remember things

like that. Big conflict and then

conversations I had with Marc Mazis.

Q Did Ms. comas ever say to you that what

she did was wrong?

A To be honest, at the beginning, she

probably didn't think she did something

wrong. But, I explained to her that even

though she didn't do it for malice, it was

wrong because of the actual check

situation.

16. Malice, or lack thereof, is not an issue in this

case. What is significant is the consistency of the Third

District's decision w ith the evidence adduced at this hearing,

all of which established that Comas was a dishonest broker who

betrayed the trust of her customer. No credible evidence was

ever presented for why Comas required a $2,000 check from

Sipple. Had Sipple not demande d documentation for that check,

and had Comas not provided a letter which falsely stated that

the money was in the hands of a title company, Comas' misdeeds

might never have come to light.

17. Undisputed and entirely credible testimony provided

by Mazis, Comas' employer, indicated that Comas would have had

no business reason to require a check in any amount in the

course of processing the Sipple transaction. Comas was not

authorized to require escrow funds, and there was no evidence

that Sipple's money wa s needed to pay any third party service

providers.

18. Through the time of the hearing, Comas falsely

claimed the transaction failed because Sipple was dissatisfied

with the interest rate Comas was able to obtain. This

testimony is rejected in favor of S ipple's much more

convincing explanation that she rejected the balloon payment

Comas proposed, insisting upon the fixed rate which she had

required from the beginning.

19. As the Third Distinct noted and the evidence at

hearing confirmed, Sipple was not C omas' only victim. Her

employer, Mazis, suffered damage to his reputation by virtue

of his association with Comas. Mazis was required to expend

time and legal fees to straighten out the damage done in the

Sipple transaction; to figure out the status of C omas' other

accounts; and to deal with the law enforcement and regulatory

proceedings spawned by Comas' dishonesty.

20. For all of the trouble Comas caused Sipple and

Mazis, she has never apologized to them. Although Comas

testified to the contrary on t hat point, her self - serving

testimony is not credible.

21. Following the Sipple transaction Comas "left" Miami

Mortgage Lenders and went to work with her husband at RPM

Lenders, Inc. (RPM), which has been licensed as a mortgage

brokerage business through the date of the hearing. She has

not had any criminal or regulatory complaints in connection

with work at RPM, which includes handling money. Comas cites

this as evidence of rehabilitation. Instead, at most, it

shows that Comas works honestly in partner ship with her

husband in the business that they own.

22. Taking into account the entire record, and having

had the opportunity to view the demeanor, credibility, ability

to perceive facts, knowledge of the facts and circumstances of

the events to which th ey testified, and motive to testify, of

each of the witnesses in close and stressful quarters, the

conclusion is inescapable that the victims' version of events

is entirely consistent with the truth. To the extent that

victims' recollections or characteri zations of material events

differ from those of Comas and her witnesses, the testimony of

the victims is credited.

23. One element of rehabilitation is making restitution

to one's victims. Restitution was made in this case, but the

question of whether re stitution was made by Comas herself was

hotly contested. Upon a careful consideration of all

testimony and exhibits relevant to this matter, it is

concluded that Comas herself did not make restitution, nor was

her money used to make restitution.

24. A fter her dishonesty was exposed, Comas attempted to

give Sipple a personal check for $2,000 in exchange for a

general release. Sipple took the check but refused to execute

the release. Comas then bounced the check.

25. In hopes of ameliorating at least some of the harm

to Sipple and to his own business, Mazis made restitution.

Comas claims that Mazis reimbursed himself for what he paid to

make Sipple whole by deducting sums from commissions that were

owed to her and to her cousin, an allegation which M azis

flatly and convincingly denied.

26. Mazis persuasively described being advised by one of

his real estate attorneys that if he attempted to recover what

he paid to Sipple from the pool of earned commissions due to

Comas, he may be subjecting himself t o both litigation and

discipline against his license. He therefore reluctantly

decided to eat the loss.

27. Comas offered no documentation or independent

testimony on the restitution issue. Her self - serving

testimony in this regard is rejected.

28. E ven if Comas' account of how Sipple got her money

back is credited in every detail, it hardly demonstrates

rehabilitation or trustworthiness. Having been caught

violating the law and professional ethics, her biggest

concern, by her own admission, was to c over herself with a

general release. When she did not get it, she felt justified

in reneging on her duty to see that Sipple was refunded money

which should never have been taken in the first place.

29. Comas complains of the "damaging publicity,

humili ation and loss of privacy and prestige within the

community;[being] forced to proceed through the criminal

justice process in which [Comas] suffered severe financial

costs, as well as emotional and mental stress prior to the

[circuit court]judge ultimately dismissing the criminal case."

30. Undoubtedly Comas suffered all these things. Such

harms naturally and probably follow the wrongs which Comas

committed. What also followed was financial loss, stress and

inconvenience for Sipple and Mazis, for which C omas has yet to

demonstrate genuine remorse or regret.

31. Comas correctly notes that the Sipple transaction

occurred over four years ago, and that her criminal record has

now been expunged. What is more significant is that Comas had

been licensed less than two years when she ran afoul of the

law. Comas is entitled to argue that this is an "isolated

incident." State licensing authorities are equally entitled,

on the record in this case, to conclude that Comas is not

rehabilitated, and continues to be un fit to be a mortgage

broker.

32. Comas notes that she has had a real estate license

since 1997. This does not add weight to her claim of

rehabilitation. There was no testimony that she has used the

license in a manner that suggests she has established a track

record of dealing honestly with the public's money in the

transient fiduciary relationships that are part and parcel of

regulated industries such as real estate and mortgage

brokering and lending.

33. Similarly, on the record in this case, the only

inference that can be drawn from the fact that Comas fulfilled

the conditions necessary to have her criminal record expunged

is that it was in her best interests to do so. Indeed, she

was legally obligated to fulfill the terms and conditions of

the pretr ial intervention program to which she was sentenced.

The alternative was to risk further prosecution. Honoring

the terms of one's plea bargain is an element of

rehabilitation, but it is not, standing alone, persuasive

evidence that rehabilitation has in fact taken place.

34. There is little, if any probative value on the issue

of rehabilitation that Comas has joined the Better Business

Bureau and donated money to the political party and

charit(ies) of her choice. There is no persuasive evidence

that reh abilitation requires the financial resources to engage

in philanthropy, or to be a political contributor.

35. In her direct testimony, Comas further discredited

herself by introducing a "certificate of appreciation" she had

received from a local workfor ce development education program

for hiring a student intern to work at her business. This

testimony backfired when, on cross - examination, it was

revealed that the student was her own son.

36. In making her case, Petitioner also saw fit to

challenge the competence and professionalism of the regulators

involved in denying her relicensure.

37. Petitioner did not and cannot make, based upon this

record, a credible argument that any OFR employee considered

something the agency was not entitled to consider, or failed

to do something the agency was required to do. Yet,

Petitioner baldy asserts that "Respondent completely failed in

its obligations and duties. . . ."

38. Three years after she was caught stealing from a

client, Comas exhibits a willingness t o harshly criticize

anyone who disagrees with her view of the facts, including the

people she victimized.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

this proceeding. Se ctions 120.569 and 120.57.

41. In this proceeding, Comas contends that she is

rehabilitated and thus entitled to license. Petitioner

therefore bears the burden of persuasion. Department of

Banking & Finance v. Osborne, Stern & Co. , 670 So.2d 932 (Fla.

1 996).

41. For the reasons set forth above, Comas has failed to

demonstrate rehabilitation. Thus, the denial of relicensure

was correct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Petition filed in this

cause be DISMISSED and Petitioner Marta Mantecon Comas be

DENIED a license.

DONE AND ENTERED this 30th day of September, 2003, in

Tallahassee, Leon County, Florida.

S

________________________ ___________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 30th day of September, 2003.

ENDNOTE

1/ To the extent that Petitioner's issue statement, as framed

in her Proposed Recommended Order, implies t hat this tribunal

should make a free - standing finding as to whether Comas is a

"person of good moral character" the undersigned disagrees and

declines to do so. While it may be possible to pass judgment

about a person's moral character, good or bad, it is neither

possible nor necessary to make such a finding on the record

presented here when evaluated against applicable law and

factual stipulations reached at hearing. The disposition of

this case depends upon whether Comas has demonstrated, by a

greater weight of evidence, sufficient rehabilitation to

justify - relicensure as a mortgage broker.

COPIES FURNISHED :

James H. Harris, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0350

Richard B. Marx, Esquire

L aw Offices of Richard B. Marx & Associates

66 West Flagler Street, Second Floor

Miami, Florida 33130

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Mark Cast eel, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recomme nded Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.