17-004919 Global Discoveries Ltd., Llc, On Behalf Of The Heirs Of Larry Bunda; And By Ocwen Loan Servicing, Inc., For Unclaimed Property Reported In The Names Larry Bunda And Homeq Servicing vs. Department Of Financial Services, Bureau Of Unclaimed Property Status: Closed Recommended Order on Monday, April 23, 2018.

Summary: Neither Petitioner established its entitlement to the unclaimed property at issue, the proceeds of a California homeowner's insurance policy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLOBAL DISCOVERIES LTD., LLC, ON

BEHALF OF THE HEIRS OF LARRY

BUNDA; AND BY OCWEN LOAN

SERVICING, INC., FOR UNCLAIMED

PROPERTY REPORTED IN THE NAMES

LARRY BUNDA AND HOMEQ SERVICING,

Petitioners,

vs. Case No. 17 - 4919

DEPARTMENT OF FINANCIAL

SERVICES, BUREAU OF UNCLAIMED

PROPERTY,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

on November 21, 2017, in Ta llah assee, Florida, before

Lawrence P. Stevenson, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner Global Discoveries Ltd., LLC:

Michael J. Farrar, Esquire

Michael Farrar, P.A.

18851 Northeast 29th Avenue , Suite 700

Aventura, Florida 33180

For Petitioner Ocwen Loan Servicing, LLC:

Barbara Fernandez, Esquire

West A. Holden, Esquire

Hinshaw and Culbertson, LLP

2525 Ponce de Leon B oulevar d., 4th Floor

Coral Gables, Florida 3313 4

For Respondent: Josephine A. Schultz, Esquire

Department of Financial Services

Office of the General Counsel

200 East Gaines Street, Room 645E - 5

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether e ither of the Petitioner s is entitled to the funds

in Unclaimed Property Account Number 117786622.

PRELIMINARY STATEMENT

By Notice of Intent dated August 4, 2017, Respondent,

Department of Financial Services, Bureau of Unclaimed Property

(ÐDepartmentÑ), gav e notice of its intent to approve the claim

for Unclaimed Property Account Number 117786622 filed by Ocwen

Loan Servicing, LLC (ÐOcwenÑ) , 1/ and to deny the claim filed by

Global Discoveries Ltd., LLC (ÐGlobalÑ) , for the same account.

On August 23, 2017, G lobal filed a Petition for Evidentiary

Hearing contesting the DepartmentÓs preliminary decision. On

August 30, 2017, the Department forwarded the cases to DOAH for

the assignment of an Administrative Law Judge to conduct a

formal hearing. Counsel for Ocw en filed a N otice of A ppearance

on September 14, 2017.

The hearing was originally scheduled to conven e on

October 20, 2017. The parties filed a pre - hearing stipulation

on October 10, 2017. The Department filed a Motion to

Relinquish Jurisdiction on Octob er 18, 2017, arguing that

because the parties were relying solely on documentary evidence

and had agreed to the admissibility of those documents, there

was no need of convening a formal evidentiary hearing. In its

response in opposition, filed on October 19, 2017, Global argued

that facts remained in dispute and stated that it objected to

the admission of the insurance policy that is at the core of

this case. In light of GlobalÓs response, the Department and

Ocwen filed a joint motion for continuance on O ctober 19, 2017.

The continuance was granted and the hearing was rescheduled for

November 21, 2017, on which date it was convened and completed.

No witnesses testified at the hearing. Oral argument was

heard. Global Ós Exhibits 1 through 5; Ocwen Ós Exhi bits 1 and 2;

and the Department Ós Exhibits 1 through 10 and 12 were admitted

without objection. Department Exhibit 11, the contested

insurance policy, was admitted over GlobalÓs objection. The

undersigned took official recognition of all requested cases ,

statutes, and other materials as requested by the parties.

The one - volume Transcript of the hearing was filed at DOAH

on November 30, 2017.

Rather than the usual process of simultaneous submission of

proposed recommended orders, the parties agreed that i t would be

more efficacious to follow a process akin to an appellate

briefing schedule, with Global first submitting an initial

brief/proposed recommended order, then the Department and Ocwen

filing answer briefs/proposed recommended orders, and finally

Gl obal submitting a reply brief/proposed recommended order. A

briefing schedule was established by Order entered on

N ovember 22, 2017. Two extensions were granted during the

briefing process. All filings were timely and have been

considered in the prepara tion of this R ecommended O rder.

Unless otherwise stated, all statutory references are to

the 2016 edition of the Florida Statutes.

FINDING S OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proc eeding, the

following Findings of Fact are made:

1. 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 dor mant accounts from various

entities and safeguards the funds until the rightful owner files

a claim establishing his or her entitlement to the funds.

2. In 2013, the Department received $273,100 from Amco

Insurance Company (ÐAmcoÑ), a subsidiary of Natio nwide Insurance

Company (ÐNationwideÑ). Amco reported the funds as the proceeds

of a Matured Life - Limiting Age insurance policy payable to the

ÐEstate of Larry BundaÑ and ÐHome Q ServicingÑ (hereinafter

cited as ÐHomEq,Ñ the companyÓs preferred name styli ng). Amco

also provided a last known address for HomEq of P ost O ffice

Box 57621, Jacksonville, Florida 32241, as an additional

property identifier. The funds are now identified as Unclaimed

Property Account Number 117786622.

3. Global is registered with the Department as a

claimantÓs representative pursuant to section 717.1400, Florida

Statutes, which permits it to file claims with the Department on

behalf of apparent owners.

4. In 2015, Global beg an 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.

5. 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.

6. 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 HomEqÓs successor, Ocwen, for the funds to be

released to the Bunda estate, and that the information as to the

check would hel p persuade Ocwen to sign the release. Nationwide

responded: ÐThe original check # was 0371843635 and it was

issued on 11/05/2009.Ñ Nationwide did not state to whom the

check was made payable.

7. The three heirs initiated a probate proceeding in the

Cir cuit 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 Ðimmediate distribution of the assets

of the deced entÑ equally to each of the heirs. Each heir was to

receive a Ðone - third (1/3) share of decedentÓs shareÑ of the

DepartmentÓs Unclaimed Property Account Number 117786622.

8. On October 17, 2016, Global filed with the Department a

claim on behalf of the B unda 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.

9. The Global claim was filed on Department Form DFS - UP -

108, which is the form prescribed by Florida Administrative Code

R ule 69G - 20.0021(6) for claims filed by a claimantÓs

representative. There is no dispute that Global used the

correct form to file its claim.

10. On December 19, 2016, Ocwen filed its claim to t he

ÐMatured Life -- Limiting AgeÑ policy issued by Amco to the

ÐEstate of Larry BundaÑ and ÐHome Q Servicing.Ñ Ocwen claimed

the funds as the successor company to HomEq.

11. The Ocwen claim was filed on Department Form DFS - UP -

106, which is the form prescri bed by rule 69G - 20.0021(4) for

claims filed directly by apparent owners, including

corporations.

12. At some point after the claims were filed, the

Department made further inquiry to Nationwide as to the nature

and status of the insurance pol icy. In an email dated

January 30, 2017, Jenn Hupp, a Nationwide premium processor,

reported to Department regulatory specialist Tiffani Ealy Claven

as follows: ÐI show that check 378366435 was issued on claim

84M85897 date of loss 10/22/2007. In payment of: POLIC Y LIMITS

FOR DWELLING LOST IN FIRE -- REISSUE OF CK 378364049.Ñ

13. Ms. Hupp did not provide a date for either of the

referenced checks, nor did she expressly state to whom they were

made payable.

14. Neither check number referenced by Ms. Hupp match ed

the check number that Nationwide provided to Global on

September 13, 2016. None of the referenced checks w ere made

part of the record.

15. 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 o verruled GlobalÓs objection and admitted the

policy.

16. The policy was not a life insurance policy but a

homeownerÓs policy, number HMC 0009452948 - 6, issued by Allied

Property and Casualty Insurance Company (ÐAllied PropertyÑ),

another subsidiary of Na tionwide, 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 declarati ons 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. HomEqÓs address was listed as P ost O ffice Box 57621,

Jacksonville, Florida 32241 - 7621.

17. Nothing in the record explains why Nationwide

originally reported the policy to the Department as a life

insurance policy, or why it was repor ted by NationwideÓs Amco

subsidiary rather than by Allied Property, the issuer of the

policy.

18. 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, Califo rnia. 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. (ÐMERSÑ) as the beneficiary , Ðacting

solely as a nominee for Lender and LenderÓs successors and

assigns.Ñ The Deed of Trust reflects a purchase price of

$495,000.

19. The Deed of Trust, in the Uniform Covenants, at

paragraph 5, requires Mr. Bunda to insure the property against

fir e, 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

assi gn rights to the insurance proceeds to

the holder of the Note up to the amount of

the outstanding loan balance.

20. If Mr. Bunda failed to purchase the insurance, then

the lender, through its servicing agent, had the authority to

purchase insurance at Mr . BundaÓs expense. In the event of

loss, insurance proceeds were to be applied to restoration or

repair of the property. If restoration or repair were Ðnot

economically feasible or LenderÓs security would be lessened,Ñ

the insurance proceeds would be app lied to the amounts secured

by the Deed of Trust, with any e xcess paid to the borrower,

Mr. Bunda.

21. Ocwen also provided an Assignment of Deed of Trust,

dated August 10, 2011, that specifically identifies 546 Elm

Street, Ramona, California , as the subje ct 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 (ÐU.S. BankÑ), as ÐTrustee under

Securitization Servicing Agreement Dated as of December 1, 2005

Structured Asset Investment Loan Trust Mortgage Pass - Through

Certificates, Series 2005 - 11Ñ (the ÐSecuritization Servicing

AgreementÑ). U.S. BankÓs address is listed as c/o Ocwen Loan

Servicing, LLC, at OcwenÓs West Palm Beach, Florida , office.

T he Assignment of Deed of Trust was recorded at the San Diego

County RecorderÓs Office on August 25, 2011.

22. Ocwen submitted a copy of a Substitution of Trustee,

dated March 3, 2011, in which MERS, as nominee for U.S. Bank,

and Ðas trustee for the Securi tization Servicing Agreement,Ñ

substitutes Western Progressive, LLC (ÐWestern ProgressiveÑ), 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 Coun ty Rec orderÓs Office until

July 12, 2011.

23. 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 Ass ignment of

Deed of Trust also names the Securitization Servicing Agreement,

implying a connection to the Deed of Trust on the Bunda

mortgage.

24. However, the Securitization Servicing Agreement itself

is not part of the record in this case. The Assignm ent 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.

25. 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 OcwenÓs limited

power of attorney includes the Deed of Trust on the Bunda

proper ty. 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.

26. Ocwen submitt ed a U.S. Securities and Exchange

Commission Form 8 - K filed by Ocwen Financial Corporation, dated

September 8, 2010, detailing Ocwen Financial CorporationÓs

acquisition of ÐHomEq Servicing,Ñ through its subsidiary Ocwen

Loan Servicing, LLC (the ÐOcwenÑ ref erenced throughout this

O rder), effective September 1, 2010. The acquisition includes

the Ðmortgage servicing rights and associated servicer advancesÑ

of HomEq. In the Form 8 - K, HomEq is identified as Ðthe U.S.

non - prime mortgage servicing businessÑ owne d by Barclays Bank

PLC, a British company, and Barclays Capital Real Estate Inc., a

Delaware corporation.

27. Florida Division of Corporations documents identify

HomEq Servicing as a fictitious name registered by Barclays

Capital Real Estate, Inc. , on Au gust 29, 2006. The registration

was canceled on October 27, 2010.

28. 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, Hom Eq informed Mr. Bunda that the servicing of his account

was being transferred from Option One to HomEq , effective

February 1, 2006.

29. HomEq sent another notice, dated August 11, 2010,

addressed to Larry R. Bunda at 1306 Poindexter Ave nue W est ,

Bremerton , W ashington 98312 - 4333. By this time, Mr. Bunda had

been dead for almost two years. The address is the same as that

given by Mr. BundaÓs heir, Robert Bunda, in the claim documents

filed by Global. It is also the address given for ÐRob BundaÑ

as the dec edentÓs son on Larry R. BundaÓs death certificate.

Nothing in the record of this case indicates how HomEq came by

this address for Larry R. Bunda in 2010.

30. The August 11, 2010 , no tice was intended to inform

Mr. Bunda that HomEq was transferring the se rvicing of his

account to Ocwen, as of September 1, 2010. This is consistent

with OcwenÓs Form 8 - K, which stated that Ocwen was acquiring

HomEq , effective September 1, 2010.

31. Ocwen submitted a Notice of Default and Election to

Sell Under Deed of Trust (ÐNoti ce of DefaultÑ), dated

February 17, 2011, over the s ignature of Marco Marquez.

Mr. MarquezÓ position is unclear, as the signature line includes

both ÐWestern Progressive, LLC, as agent for beneficiaryÑ and

ÐBy LSI Title Company, As Agent.Ñ The rel ationship of LSI Title

Company to this case is unexplained in the record. The document

indicates that it was recorded in the San Diego County

RecorderÓs Office on February 18, 2011.

32. The date on the Notice of Default is prior to the

appointment of Wes tern Progressive as trustee by the

Substitution of Trustee document dated March 3, 2011. The

source of Western ProgressiveÓs authority to do anything

regarding the property as of February 17, 2011, is unexplained

in the record.

33. 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 Ðyour property,Ñ sta tes that Ðyou are

behind in your paymentsÑ and advises ÐyouÑ how to obtain a

written itemization of the amount Ðyou must pay.Ñ Nothing in

the document gives any indication that the ÐyouÑ being addressed

is anyone other than Larry R. Bunda, the borrower, w ho was dead.

34. 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 sec ure 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 rer ecorded 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 $49 5,000.00. 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

9/1/2 008 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

o f 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

t he 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,

pursuan t to the terms and provisions of the

loan documents.

35. Again, the statements addressed to ÐyouÑ 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 wa s dead before the due date cited by the Notice of

Default.

36. Also, the assertion that Western Progressive Ðis

either the original trustee, the duly appointed substituted

trustee, or acting as agent for the trustee or beneficiary under

a Deed of Trust da ted 10/5/2005, executed by LARRY R. BUNDA, A

WIDOWER, as Trustor, to secure certain obligations in favor of

BNC MORTGAGEÑ was not true as of February 17, 2011, at least

insofar as the record evidence of this case indicates. Western

Progressive was not sub stituted as trustee until March 3, 2011. 3/

37. 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 borr ower either in person or

by telephone to assess the borrowerÓs

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.

38. The quoted stat ements 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 subseque nt 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

stateÓs civil code, or of failure to provide notice to the

actual, living parties in interest.

39. Unsurprisingly, the borrower did not respond to the

Notice of Default and the property proceeded to a trusteeÓs

sale. Ocwen submitted a Notice of TrusteeÓs Sale, dated July 8,

2011, and recorded in the San Diego County RecorderÓs Office on

July 12, 2011. This document is signed by Robin Pape, Trustee

Sales Assistant, on behalf of Western Progressive, as trustee.

40. The Notice of TrusteeÓs Sale be gins 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 PROCEEDI N G AGAINS T YOU,

YOU SHOULD CONTACT A LAWY ER.

41. Nothing in the Notice of TrusteeÓs Sale gives any

indication that it is addressed to anyone other than Larry R.

Bunda, who remained dead on July 8, 2011.

42. The Notice of TrusteeÓs Sale informs the recipient

that the trusteeÓs public auction sa le 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 unpa id ba lance and other charges

is $610,258.23.

43. Finally, Ocwen submitted a TrusteeÓs Deed Upon Sale,

dated September 20, 2011, and recorded at the San Diego County

RecorderÓs Office on September 29, 2011. The document states

that Western Progressive, as Trus tee under the Deed of Trust,

Ðdoes 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 situa ted in the county of

San Diego, State of California, described as follows . . . .Ñ

There follows a legal description matching the Bunda property at

546 Elm Street, Ramona, California.

44. The TrusteeÓs Deed Upon Sale also provides as follows:

This convey ance 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 ve sted 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 2 005 - 0881960, Book --- , Page --- and

rerecorded on --- as --- of official

recordsustee 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 Noti ce 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.

A ll 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 TrusteeÓs Sale, and the posting of

copies of Notice of TrusteeÓs Sale hav e been

complied withustee, in compliance with

said Notice of TrusteeÓs 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

purch aser 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.

45. 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 TrusteeÓs Deed Upon Sale.

46. The facts recited above raise many questions. First,

why is this c ase being heard in Florida? Larry R. Bunda lived

in California. His heirs live in the states of Washington and

California. OcwenÓs 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 t he only connection of this

unclaimed property to Florida is the address provided to the

Department by Amco in its initial 2013 report: Ðlast known

addressÑ of P ost O ffice Box 57621, Jacksonville, Florida 32241.

47. This address turned out to be that of H omEq.

According to OcwenÓs Form 8 - K, HomEq ceased to exist as a

separate company as of Septemb er 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 a nd OcwenÓs acts of following the money to its

landing place at the Department.

48. 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 Jacks onville.

However, at some point it should have occurred to the Department

that its unclaimed property counterpart in the State

ControllerÓs Office of California might be better placed to

resolve this controversy involving issues of California real

propert y law, inheritance law , and insurance law. 4/

49. 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 confident ly 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. 201 8);

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).

50. 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/

51. A second question regards the status of Ocwen, which

filed its claim on Department Form DFS - UP - 106, the form

prescribed for Ðapparen t owners.Ñ Section 717.101(2) defines

Ðapparent ownerÑ as Ðthe person whos e name appears on the

records of the holder as the person entitled to property held,

issued, or owing by the holder.Ñ It is unclear whether Amco or

the Department would be considered the ÐholderÑ of the insurance

proceeds, but it makes no difference as Oc wenÓs name did not

appear on the records of either entity. Ocwen could ultimately

be found to be an ÐownerÑ as defined in section 717.101(18), and

could be a ÐclaimantÑ as defined in rule 69G - 20.030(14), but

Ocwen was not an Ðapparent ownerÑ at the time i t filed its

claim, under the express terms of section 717.101(2).

52. Therefore, it appears that OcwenÓs 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 Ðclaims filed by other

than a pparent owners,Ñ 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 ÐcompleteÑ

under the terms set forth in rule 69G - 20.0021(1)(b), which

provides that a complete claim Ðshall include the correct claim

form identified in this rule.Ñ

53. Even if it were accepted that the ruleÓs definition of

Ðapparent ownerÑ should not be read literally and that Ocw en was

entitled to file its claim as Ðapparent ownerÑ by virtue of its

status as HomEqÓs purchaser and successor in interest, 6/ there

remains the question of whether HomEq, and therefore Ocwen,

could be considered the ÐownerÑ of the unclaimed property in t he

sense required by section 215.965, Florida Statutes, which

provides:

Disbursement of state moneys. Ï 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 dis bursed 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) .

54. The record evidence establishes that HomE q, 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 Ðmortgage loss payee,Ñ there is nothing in the record that

establishes HomEq as the Ðultimate beneficiaryÑ of the insurance

policy. HomEqÓs 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.

55. The Department argues that ÐOcwen is claiming the

funds in its own name under the authority of a limited power of

attorney to act on U.S. BankÓs behalf as a loan servicer.Ñ For

the sake of argument, the undersigned will put aside OcwenÓs

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 op erating pursuant t o 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 a n owner.

56. 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 . . . .

57. The Department seems to believe that this language

self - evidently establishes OcwenÓs ownership interest in the

proceeds of this insurance po licy, when it merely authorizes

Ocwen to go out and recover funds Ðbelonging to . . . U.S.

Bank.Ñ It does not transfer ownership of those funds to Ocwen.

It does not make Ocwen the ultimate beneficiary of the insurance

policy.

58. The undersigned is awa re of cases such as Lenart v.

Ocwen Fin ancial Corp oration , 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 ÐownerÑ for the purpose of litigation o ver 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 Ðapparent ownerÑ limitation on the use

of Form DFS - UP - 106 and the Ðultimate beneficiaryÑ 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 n ot

necessarily have proven its right to claim those funds once they

have become unclaimed property and passed to the DepartmentÓs

custody.

59. In its attack on the proposed award to Ocwen, Global

contends that OcwenÓs 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 HomEqÓs rights but finds that those rights are

insuffi cient to establish OcwenÓs 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.

60. Global cites Martin Young v. Dep ar t ment of Banking and

Fin ance , 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 appar ent 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.

61. More to the point, the court held that creditor s were

not ÐownersÑ because they did not have a Ðlegal or equitable

interestÑ in the subject property. ÐInsurance proceeds are

personal property which judgment creditors cannot reach or claim

an interest in until after resorting to judicial process.Ñ

Mar tin Young , 659 So. 2d at 411.

62. 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 home ownerÓs

insurance policy with the standard mortgagee clause.

63. Global accurately points out that the Martin Young

court stated no distinction between secured and unsecured

creditors. However, the courtÓs 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.

64. Of course, the DepartmentÓs analysis assumes that U.S.

BankÓs 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 for eclosure 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. BankÓs agent, to claim ÐownershipÑ of the

unclaimed funds.

65. The que stion at the heart of this case, regarding the

claim of Global and especially that of Ocwen, is: what happened

in California? The DepartmentÓs 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

DepartmentÓs assumptions.

66. 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 homeownerÓs 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.

67. Beyond these facts, matters become hazier if one

relies on the documents in evidence without assuming facts

outside the reco rd. One may reasonably presume the correctness

of NationwideÓs report that the total loss of Mr. BundaÓs

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 o ver 1 , 000 residences and other buildings.

Therefore, it is reasonable to find that Larry R. Bunda was

alive when the loss occurred.

68. Nationwide reported to Global that the original check

to pay the insurance claim was check number 0371843635 and was

i ssued on November 5, 2009, more than one year after Larry R.

BundaÓs 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.

69. Nationwide later reported to the Department that two

other checks had been issued: check number 378364049 and the

reissued check number 3783664 35. 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.

70. 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. B unda 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.

71. Was HomEq aware that Larry R. Bunda was dead at the

time the checks were issued? Such might be inferre d from the

August 11, 2010, notice that HomEq sent to Mr. Bunda at his

sonÓs 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

HomEqÓs successor, Ocwen should have known of the Washington

addres s, but the record contains no direct mailings from Ocwen

to Larry R. Bunda.

72. There is nothing in the record indicating that Western

ProgressiveÓs Notice of Default and Notice of TrusteeÓs 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

Ðthe borrower either in person or by telephoneÑ to explore

optio ns 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. BundaÓs heirs to

unwind the sale of the property or seek damages for Western

ProgressiveÓs selling of the property without notice to the

Bunda estate.

73. This point is important because a large part of the

DepartmentÓs argument for aw arding the claim to Ocwen rests on

the assumption that the Bunda heirs ÐwaivedÑ their right to

contest the Ocwen claim because of Ðthe foreclosure they allowed

to occur in 2011.Ñ There is no record evidence that the Bunda

heirs even knew of the foreclosur e, let alone ÐallowedÑ it to

happen. The Department simply assumes a fact not in evidence. 9/

74. 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 pa yee 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.

75. On November 15, 2017, the circ uit court on its own

motion entered an Order to Set Aside Order of Summary

Administration, citing unspecified ÐabnormalitiesÑ that had been

found in the estate file. Thus, GlobalÓs reliance on the Order

of Summary Administration is misplaced.

76. As to t he heirsÓ 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

homeownerÓs insurance company, the heir sÓ 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 trusteeÓs sale of the property in its damaged

condition.

77. Again, however, this hierar chy of rights depends on a

finding that the Notice of Default, the Notice of TrusteeÓs

Sale, and the trusteeÓs 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

OcwenÓs principal, U.S. Bank, through its agent, Western

Progressive, gave notice to any living person with an interest

in Larry R. BundaÓs estate of the default, foreclosure, or

truste eÓs 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 fail ure to notify the estate or of falsely

attesting that notice has been given to the borrower.

78. 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 fun ds. Enough is known

of the situation to permit the conclusion that the Bunda heirsÓ

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 investi gation and

determines whether the foreclosure on the Bunda mortgage was

conducted in accordance with California law.

79. GlobalÓs final ground for claiming entitlement to the

funds is that it filed the first complete claim. Section

717.1241(1)(a) provide s:

(1) 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:

(a) To the person submitting the first

claim received by the Division of Unclaimed

Property of the department that is complete

or made complete.

80. The Department concedes that Global filed all of the

necessary paperwork. Its application was not Ðin completeÑ in

the clerical sense that Global left out any of the information

required by Form DFS - UP - 108. The Department contends that

GlobalÓs application was not substantively complete in that it

did not establish proof of entitlement to the funds on the part

of the Bunda heirs. ÐProof of entitlementÑ is expressly

required in order for an application to be deemed Ðcomplete.Ñ

Section 717.1241(3) provides: Ð A claim is complete when

entitlement to the unclaimed property has been established.Ñ

See also Fl a. Admin. Code R. 69G - 20.0021(1)(b)&(c).

81. 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 Ðfirst to fileÑ language does

not create an independent basis for establishing entitlement but

is a way for the Department to choose among entitled claims.

82. For purposes of commencing a review, the Department

deems a claim ÐcompleteÑ 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 recei ves 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 whethe r entitlement

has been demonstrated.

83. The Department argues that the merits review is

subsequent to and separate from the claimantÓs submission of the

required documents. Global has conflated the claimantÓs

responsibility to provide all required doc umentation with the

DepartmentÓs 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 s tatute and

rule does not mean the claim is ÐcompleteÑ in the sense that

entitlement is established.

84. The DepartmentÓs argument is correct. The facts of

this case do not permit a finding that the Bunda heirs are

entitled to the unclaimed funds. A se cured lienholder who

followed all proper steps in notifying the borrower or his heirs

of the default, of the foreclosure, and of the pending trusteeÓs

sale would be entitled to cover any deficiency with some or all

of the proceeds of the insurance policy. OcwenÓs 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 OcwenÓs failure does not establish that GlobalÓs claim

is ÐcompleteÑ on the merits.

85. In summary, Ocw en has failed to establish by a

preponderance of the evidence that it is entitled to the funds

in Unclaimed Property Account Number 117786622 because:

a. It failed to file its claim on the

correct form;

b. It failed to establish its right to

claim as an ÐownerÑ of the property; and

c. It failed to establish that the

foreclosure and sale of the Bunda property

were conducted in accordance with California

law.

86. Global failed to establish by a preponderance of the

evidence that it is entitled to a port ion 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 credito r, if the regularity

of the events surrounding the foreclosure and sale of the Bunda

property can be established.

87. 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 pr operty was conducted in

accordance with California law. If Ocwen is unable to establish

U.S. BankÓs 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.

CONCLUSIONS OF LAW

88. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

89. In any administrative proceeding for the determination

of a claim for unclaimed property, the claimant has the burden of

proving entitlement to the property by a preponderance of the

evidence. See § 717.126, Fla . Stat.

90. The hearing is a de novo proceeding intended to

for mulate agency action, not to review action taken earlier.

Beverly Enters. - Fla., Inc. v. Dep't of HRS , 573 So. 2d 19, 23

(Fla. 1st DCA 1990).

91. The evidence presented did not support either of

PetitionersÓ arguments as to entitlement to the unclaimed

p roperty. Neither Petitioner established, by a preponderance of

the evidence, its entitlement to Unclaimed Property Account

Number 117786622.

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 1177866 22 , 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 2 3rd day of April , 2018 .

ENDNOTE S

1/ The original style of the case referred to ÐOcwen Loan

Servicing, Inc.Ñ Much of the discovery materials submitted on

OcwenÓs behalf used ÐInc.Ñ rather than ÐLLCÑ for the company.

Because the companyÓs actual claim for unclaimed property used

the ÐLLCÑ appellation, this O rder will accept that as the

companyÓs actual name.

2/ This is the date that NationwideÓs records custodian

certified the business records. There is no indication in the

record as to when the Department physically received the

document.

3/ The undersigned is here giving Ocwen the benefit of the doubt

by accepting that the Substitution of Trustee was actually

executed on March 3, 2011. As noted above, it was not recorded

until July 12, 2011, four days after Western Progressive sent

the Notice of TrusteeÓs Sale to ÐLarry R. Bun da, a Widower.Ñ

See Findings of Fact 39 - 42 infra .

4/ Global argues that Florida law should apply because Florida

is where the property at issue, i.e., the unclaimed funds in the

DepartmentÓs account, is located. Given the pervasiveness of

California co ntacts, it is difficult under any of the choice of

law tests put forward by the parties to conclude that Florida

law should govern this case, aside from the statutory and rule

provisions regarding unclaimed property. The only real question

is whether a Fl orida tribunal should be hearing the case at all.

5/ This is not intended to castigate the DepartmentÓs failure to

know that the lawÓs effect is prospective only. The undersigned

is no better versed in the nuances of California real estate,

insurance, a nd estates and trusts law and is in no better

position to draw definitive conclusions on the interplay of

those broad subjects in this case than is the Department.

6/ Global correctly points out that there is no direct evidence

in the record establishing that HomEq ever acquired servicing

rights from the original servicer, Option One. The record does

include HomEqÓs January 27, 2006 , Notice of Service Transfer

letter to Larry R. Bunda informing him of the change in

servicers, which Global characterizes a s Ðself - serving.Ñ The

undersigned is persuaded that this letter and the fact that

HomEq is named as the loss payee on the insurance policy are

sufficient to establish that HomEq was the loan servicer on the

Bunda mortgage. There is no other conceivable r eason why HomEq,

a loan servicing business, would be the loss payee on the

homeownerÓs insurance policy.

7/ The Department has acknowledged that it is required to comply

with section 215.965. See Exhibit B to GlobalÓs Request for

Official Recognition fi led on October 6, 2017 (letter from

Josephine A. Schultz, Esquire, to Judge Maria M. Korvick, dated

March 17, 2017).

8/ See § 709.2102(9), Fla . Stat.

9/ This is not the only instance of the DepartmentÓs position

resting on facts not in evidence. The D epartment also states as

fact that Ðthe insurance check in payment of the claim was

payable to both Bunda, who at the time was deceased and hence to

his estate, and HomEq.Ñ As noted above, the evidence indicates

that as many as three checks were issued an d none of them has

been made part of the record. Therefore, it cannot be known to

whom the checks were made payable. It is also unknown whether

Larry R. BundaÓs estate was made aware of the existence of any

one of the insurance checks at the time it was issued.

COPIES FURNISHED:

Gary Devlin, Esquire

Hinshaw & Culbertson, LLP

Suite 800

11601 Wilshire Boulevard

Los Angeles, California 90025

Michael J. Farrar, Esquire

Michael J. Farrar, P.A.

Suite 700

18851 Northeast 29th Avenue

Aventura, Florida 33180

(eServed)

Josephine A. Schultz, Esquire

Department of Financial Services

Office of the General Counsel

Room 645E - 5

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

West A. Holden, Esquire

Hinshaw & Culbertson LLP

2525 Ponce de Leon Boulevard

Coral Gables, Florida 33134

(eServed)

Barbara Fernandez, Esquire

Hinshaw & Culbertson LLP

4th Floor

2525 Ponce de Leon Boulevard

Coral Gables, Florida 33134

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Fin ancial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to thi s Recommended Order should be filed with the agency that

will issue the Final Order in this case.