21-000670 Assertive Mortgage, Llc vs. Office Of Financial Regulation Status: Closed Recommended Order on Friday, December 3, 2021.

Summary: Section 494.00321(5), Florida Statutes, required that the application at issue be denied.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A SSERTIVE M ORTGAGE , LLC ,

Petitioner,

vs. Case No. 21 - 0670

O FFICE OF F INANCIAL R EGULATION ,

Respondent .

/

R ECOMMEN DED O RDER

Pursuant to notice, a final hearing was conducted on September 16, 2021,

via Zoom, before Garnett W. Chisenhall, a duly designated Administrative

Law Judge of the Division of Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: H. Rich ard Bisbee, Esquire

H. Richard Bisbee, P.A.

Suite 206

1882 Capital Circle Northeast

Tallahassee, Florida 32308

For Respondent: Joaquin Alvarez, Esquire

Office of Financial Regulation

Fletcher Building

200 East Ga ines Street

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

Whether Assertive Mortgage LLCÔs (ÑAssertive MortgageÒ) application for

a mortgage broker license should be granted. 1

1 Unless stated otherwise, all statutory references shall be to the 2020 version of the Florida

Statutes. See generally McClosky v. DepÔt of Fin. Serv. , 115 So. 3d 441 (Fla. 5th DCA

P RELIMINARY S TATEMENT

Via a Notice of Intent to Deny dated December 30, 2020, the Office of

Financial Regulation (ÑOFRÒ) provided notice that it intended to deny

Assertive MortgageÔs application for mortgage broker licensure. In support

thereof, OFR alleged that Assertive Mortgage failed to disclose in its

application that the loan originator license of its sole owner, Toshia Parrish,

had been revoked in 2009. Section 494. 00321(5), Florida Statutes, provides ,

in pertinent part , that OFR Ñshall deny a license if any of the applicantÔs

control persons has had a loan originato r license, or its equivalent, revoked in

any jurisdiction.Ò

Assertive Mortgage petitioned for a formal administrative hearing and set

forth the following factual disputes:

[Assertive Mortgage] disputes that [OFR] lawfully

issued an Ñorder, OFR 2009 - 18 8, in which ParrishÔ s

(then known as Glover) mortgage broker license

MB 0822297 was revoked.Ò Specifically, [Assertive

Mortgage] disputes that the OFR properly and

lawfully revoked ParrishÔs mortgage brokerÔs

license # MB0822297. If the OFR did issue a

com plaint and enter a final order, Parrish (and

[Assertive Mortgage] ) was unaware of the issuance

or existence of the complaint or final order only

until after service of the pending Notice which is

the subject of this Petition. [Assertive Mortgage]

further d isputes that the OFR properly obtained

personal jurisdiction over Parrish to legally enter a

Final Order in Case 2009 - 188 insofar as the OFR

failed to personally serve Parrish with a complaint

prior to entry of a final order. [Assertive Mortgage]

further a sserts that to the extent OFR intends to

rely upon constructive service as a condition

precedent to service of the complaint upon Parrish

by publication, such constructive service was

defective insofar as the OFR failed to properly

2013)(stating that a proceeding is governed by the law in eff ect at the time of the commission

of the acts alleged to constitute a violation of law).

conduct a reasonable and thorough Ñdiligent search

and inquiry.Ò Any final order relied upon by the

OFR in its Notice based upon such defective service

was and remains fatally defective; void ab initio ;

and a nullity.

[OFR] infers or assumes Ð albeit incorrectly ɣ that

[Assertive Mortgage] through its control person,

Parrish, was under an obligation to disclose an

alleged event unknown of at the time by [Assertive

Mortgage] (and Parrish). In addition, [Assertive

Mortgage] disputes that Parrish Ñhad a prior loan

ori ginator license or equivalent license revokedÒ to

the extent this allegation infers or assumes any

purported revocation by OFR was, in fact, legally

sufficient. Prior to the entry of a final order of

revocation and in recognition of a licenseeÔs Ñdue

proce ssÒ rights, OFR pursuant to £120.60(5), Fla.

Stat., was first required to perfect personal

jurisdiction over Parrish Ñby personal service or

certified mail, an administrative complaint which

affords reasonable notice to the licensee of facts or

conduct whi ch warrant the intended action and

unless the licensee has been given an adequate

opportunity to request a proceeding pursuant to

ss. 120.569 and 120.57.Ò The OFR, however, failed

to perfect proper service of a complaint upon

Parrish prior to entry of an y alleged final order as

§120.60(5), Fla. Stat. required. To the extent OFR

may intend to rely, arguendo, upon constructive

service as a condition precedent to service by

publication of the complaint upon Parrish, OFRÔs

alleged constructive service was leg ally defective

insofar as OFR failed to properly conduct a

reasonable and thorough Ñdiligent search and

inquiryÒ or otherwise comply with £120.60(5), Fla.

Stat. Consequently, any Ñfinal orderÒ based upon

defective service was and remains void ab initio Ð in

other words, a nullity, i.e. Ñan act void of legal

effect.Ò

OFR referred this matter to DOAH on February 1 7 , 2021, and the

undersigned issued a Notice of Hearing on March 1, 2021, scheduling a final

hearing for April 27 and 28, 2021.

In a related ma tter, OFR issued an Administrative Complaint on

January 4, 2021, alleging that Toshia ParrishÔs loan originator licensure

application failed to disclose that she was previously known as Toshia Glover.

The Administrative Complaint further al leged that Toshia Glover had

previously held a mortgage broker license that had been revoked by OFR.

Accordingly, OFR stated that it intended to: (a) annul Ms. ParrishÔs newly -

issued loan originator license because it had been issued by mistake; 2 or

(b) revoke that license and impose a $3,500 administrative fine because her

loan originator licensure application had contained a material misstatement

and/or omission. That matter was also referred to DOAH, and it was assigned

DOAH Case No. 21 - 0 669. 3

O n April 12, 2021, Assertive Mortgage filed a ÑStipulated Motion to

Continue Final Hearing.Ò In support thereof, Assertive Mortgage asserted

that more time was need ed for discovery. The undersigned issued an Order

on April 13, 2021, granting the aforementio ned m otion and requiring the

parties to provide mutual dates of availability by April 16, 2021. The final

hearing was ultimately rescheduled for July 29 and 30, 2021.

OFR filed a Motion for Protective Order on June 30, 2021, seeking to

preclude Assertive Mortgage from inquiring about certain OFR documents

2 Section 494.00312(5), Florida Statutes, provides that a person who had a loan originator

license or its equivalent revoked is ineligible to be licensed as a loan or iginator.

3 OFR later amended the Administrative Complaint in DOAH Case No. 21 - 0 669 to

additionally allege that OFR had erroneously issued a loan originator license on

September 23, 2020, to Ms. Parrish despite the fact that she had previously held a mor tgage

broker license that had been revoked.

that were utilized in 2009 and 2010. The undersigned issued the following

Order on July 7, 2021:

The instant case is before the undersigned based on

a ÑMotion for Protective Order and to Incorporate

by R eference the OfficeÔs Motion in Limine Filed in

DOAH Case Number 21 - 0669PLÒ (Ñthe MotionÒ),

filed by Respondent on June 30, 2021. With regard

to the portion of the Motion seeking to incorporate

by reference a Motion in Limine, filed in DOAH

Case No. 21 - 066 9PL, the undersigned convened a

telephonic conference on July 7, 2021, and

explained that certain facts appeared to have

already been established via certain exhibits being

offered by the Office of Financial Regulation.

Because the parties appeared to agre e with the

undersignedÔs view of what facts were relevant to a

resolution of the instant case and DOAH Case

No. 21 - 0669PL, the portion of the Motion seeking to

incorporate by reference a Motion in Limine, filed

in DOAH Case No. 21 - 0669PL, is DENIED with out

prejudice. As for the portion of the Motion seeking a

protective order, the undersigned notes for the

record that the deposition topics summarized in

paragraph 5 of the Motion are not relevant to the

resolution of the instant case.

On July 15, 2021, O FR filed a m otion seeking to continue the final hearing

for 60 days because the parties needed more time to conduct a deposition.

The undersigned issued a n otice on July 16, 2021, rescheduling the final

hearing for September 16 and 17, 2021.

The final hearing was convened as scheduled and completed on

September 16, 2021. Because the cases are closely related, the undersigned

heard the instant case and DOAH Case No. 21 - 0 669 simultaneously. In order

to minimize the number of exhibits, the two sets of ex hibits that OFR filed for

C ase N os. 21 - 0 699 and 21 - 0 670 were consolidated into a single set of exhibits.

Assertive Mortgage and Ms. Parrish filed one set of exhibits that was used for

both cases.

The undersigned considered multiple motions at the outse t of the final

hearing. The first was a ÑRenewed Motion in LimineÒ filed by OFR on

September 14, 2021, seeking to foreclose Ms. Parrish from challenging the

validity of an April 22, 2009, Final Order that revoked her mortgage broker

license. In the course of granting the Renewed Motion in Limine, the

undersigned reiterated comments made during the July 7, 2021, phone

conference that administrative finality barred the undersigned from

considering any matters that had been addressed by the April 22, 2009, Fin al

Order. However, the undersigned also ruled that Ms. Parrish could proffer

the testimony and/or evidence at issue. The undersigned granted OFRÔs

m otion to take official recognition of c hapter 494 of the Florida Statutes and

c hapter 69 V - 40 of the Florida Administrative Code. Finally, the undersigned

denied Ms. ParrishÔs Motion to Stay the final hearing until OFR ruled on a

Petition she had filed with OFR requesting that OFR vacate the April 22,

2009 , Final Order.

OFR presented testimony from Bill Mo rin and the following exhibits were

accepted into evidence as OFR Exhibits 1 through 5 and 7 through 15: (1) A

Default Final Order rendered by OFR on April 22, 2009, that revoked Toshia

GloverÔs mortgage broker license and imposed a $7,000 fine for which

M s. Glover and ALoans were jointly and severally liable; (2) a blank, hard

copy of the Nationwide Multi - State Licensing SystemÔs (ÑNMLSÒ) loan

originator application designated thereon as ÑNMLS INDIVIDUAL FORM

MU4 EFFECTIVE 4/16/2012Ò and adopted by Florid a Administrative Code

Rule 69V - 40.002; 4 (3) a filing guide produced by NMLS to assist applicants

with completing their application for licensure as a loan originator; (4) the

loan originator licensure application filed with OFR by Toshia Parrish on

4 Ms. Parrish applied to OFR for licensure as a loan originator on September 6, 2020. The

version of rule 69V - 40.002 in effect at that time adopted ÑNMLS Individual Form (Form

MU4), Version 8.9, dated and effec tive April 16, 2012.Ò

Septemb er 6, 2020; (5) a document from the State of GeorgiaÔs Department of

Revenue indicating that, as of June 7, 2018, there was an outstanding lien of

$488,438.77 against Ms. Glover; 5 (7) an amended/updated version of

Ms. ParrishÔs loan originator licensure ap plication filed with OFR on

April 29, 2021; (8) a document delineating past application filings by

Ms. Parrish; (9) an application filed by Mr. Parrish with the Florida

Department of Business and Professional Regulation for licensure as a real

estate broke r; (10) a blank, hard copy of the NMLS form used by companies

seeking licensure as a mortgage brokerage entitled ÑNMLS COMPANY

FO R M MU1, EFFECTIVE 03/31/2014Ò and adopted by Florida

Administrative Code Rule 69V - 40.002; 6 (11) a filing guide produced by NMLS

to assist applicants with completing their company application for licensure;

(12) an application f or licensure submitted by Assertive Mortgage on

September 19, 2020; (13) an application for licensure submitted by Assertive

Mortgage on April 29, 2021; (14 ) Assertive MortgageÔs organizational chart;

and (15) a document delineating past application filings by Assertive

Mortgage.

Ms. Parrish testified on her own behalf, and PetitionerÔ s E xhibits 1

through 5 and 8 were accepted into evidence. Ms. Parrish w as allowed to

proffer testimony regarding her assertion that she was unaware of OFRÔs

April 22, 2009 , Final Order when she filed the application at issue in this

5 The document marked for identification by the undersigned as OFR Exhibit 6 was not

accepted into evidence during the final hearing due to concerns regarding its authenticity.

The undersigned gave OFR two weeks following the concl usion of the final hearing to file a

certified copy. On October 6, 2021, OFR filed a n otice stating that it was withdrawing OFR

Exhibit 6 from consideration. As a result, OFR Exhibit 6 was not accepted into evidence, and

the undersigned disregarded any tes timony based on that document.

6 Assertive Mortgage applied to OFR for licensure as a mortgage broker on September 19 ,

2020. The version of rule 69V - 40.002 in effect at that time adopted ÑNMLS Company Form

(Form MU1), Version 10.0 dated and effective Marc h 31, 2014 . Ò

proceeding. Ms. Parrish was also allowed to proffer Petitioner Ôs Exhibits 10

through 14.

The two - volume final hearing Transcript 7 was filed on October 13 , 2021,

and both parties filed timely proposed recommended orders that have been

considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

Based on the oral and documentary ev idence adduced at the final hearing,

the entire record of this proceeding, and matters subject to official

recognition, the following Findings of Fact are made:

1. OFR is the state agency responsible for regulating mortgage brokering,

mortgage lending, a nd loan origination. 8

2. Toshia Glover became a Florida - licensed mortgage broker in 1999, and

she became licensed in Florida and Georgia as a mortgage loan originator in

2000. At some point after 2003, she obtained a Florida real estate brokerÔs

license. I n 2006, Ms. Glover became a Georgia - licensed mortgage broker.

3. Ms. Glover operated a mortgage broker company called A Loans from

2005 until September of 2008. The economic downturn that occurred in 2008

decimated her real estate and loan origination bus inesses and forced her to

discontinue operations.

7 Pages 9 and 10 of the Transcript erroneously attribute comments by Petitioner Ôs counsel to

counsel for Respondent .

8 Prior to 2010, OFR issued mortgage broker licenses to individuals and businesses. Since

2010, OFR has issued loan origin ator licenses to individuals and mortgage broker licenses to

businesses. Therefore, the individual mortgage broker license is the historical equivalent of

the current loan originator license. Section 494.001(18), Florida Statutes, defines a Ñloan

originato rÒ as Ñ an individual who, directly or indirectly, solicits or offers to solicit a mortgage

loan, accepts or offers to accept an application for a mortgage loan, negotiates or offers to

negotiate the terms or conditions of a new or existing mortgage loan on behalf of a borrower

or lender, or negotiates or offers to negotiate the sale of an existing mortgage loan to a

noninstitutional investor for compensation or gain.Ò

4. Ms. Glover moved to Georgia from Florida during the fourth quarter of

2008, and sustained herself by doing odd jobs. Ms. Parrish estimates that she

earned less than $10,000 in 2009.

5. In February of 2 009, OFR unsuccessfully attempted to personally serve

an Administrative Complaint on Toshia Glover alleging that A Loans and

Ms. Glover, as the principal broker of A Loans, received improper

compensation of $1,530 and $600. Those allegations amounted to violations of

sections 494.0038(1)(a) and (1)(b)1 . Florida Statutes (2005 and 2006) , and

r ule 69V - 40.008(1). In March and April of 2009, OFR published notice of the

Administrative Complaint in the Sun - Sentinel daily newspaper.

6. After Ms. Glover and A Loans did not respond to the Administrative

Complaint, OFR issued a ÑDefault Final Order and Notice of RightsÒ (Ñthe

Default Final OrderÒ) on April 22, 2009, immediately revoking Ms. GloverÔs

mortgage broker license and imposing a $7,000 administra tive fine for which

Ms. Glover and A Loans were jointly and severally liable. Ms. Glover and A

Loans were also required to refund a total of $2,130 to one or more borrowers.

7. Ms. Glover married her current husband on December 12, 2012, and

has not us ed her maiden name since. She will hereinafter be referred to as

Ms. Parrish.

8. Ms. Parrish owns Assertive Mortgage. I n September of 2020,

Ms. Parrish, on behalf of Assertive Mortgage, filed an application with OFR

for licensure as a mortgage broker. The application identified Ms. Parrish as

Assertive MortgageÔs president and qualifying individual.

9. Ms. Parrish is the owner and president of Assertive Mortgage.

10. OFR determined that Assertive MortgageÔs application could not be

granted because the D efault Final Order had revoked Ms. Par r ish Ôs mortgage

broker license.

C ONCLUSIONS OF L AW

11. DOAH has jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57, Florida Statutes.

12. As the applicant seeking licensure , Assertive Mortgage bears the

burden of proving entitlement by a preponderance of the evidence. See Fla.

DepÔt of Child. & Fams. v. Davis Family Day Care Home , 160 So . 3d 854,

856 (Fla. 2015); DepÔt of Banking & Fin. v. Osborne Stern & C o ., 670 So. 2d

932, 934 (Fla. 1996).

13. However, OFR must prove by a preponderance of the evidence that t he

Default Final Order revoked Ms. Parrish Ôs mortgage broker license.

See generally Young v. DepÔt of Cmty. Aff. , 625 So. 2d 831, 833 - 34 (Fla.

1993) (stating that Ñ[h]aving determined that the proceeding before the

Commission is a de novo hearing, we now turn to the placement of the

burdens in such a proceeding. The general rule is that, apart from statute,

the burden of proof is on the part y asserting the affirmative of an issue before

an administrative tribunal.Ò); £ 120.57(1)(j), Fla . Stat . (2021)(providing that

Ñ[f]indings of fact shall be based upon a preponderance of the evidence, except

in penal or licensure disciplinary proceedings or except as otherwise provided

by statute, and shall be based exclusively on the evidence of record and on

matters officially recognized.Ò).

14. Section 494.00321( 5 ) provides that OFR Ñshall deny a license if any of

the applicantÔs control persons has had a loan originator license, or its

equivalent, revoked in any jurisdiction.Ò

1 5 . Section 494.001(7), defines Ñcontrol personÒ to mean:

A n individual, partnership, corporation, trust, or

other organization that possesses the power,

directly or indirectly , to direct the management or

policies of a company, whether through ownership

of securities, by contract, or otherwise. The term

includes, but is not limited to:

(a) A companyÔs executive officers, including the

president, chief executive officer, chief financial

officer, chief operations officer, chief legal officer,

chief compliance officer, director, and other

individuals having similar status or functions.

(b) For a corporation, each shareholder that,

directly or indirectly, owns 10 percent or more o r

that has the power to vote 10 percent or more, of a

class of voting securities unless the applicant is a

publicly traded company.

* * *

(f) Principal loan originators.

1 6 . As its owner and president, Ms. Parrish is a Ñcontrol personÒ for

Assertive Mo rtgage as that term is defined in section 494.001(7).

1 7 . Regardless of whether Assertive Mortgage can demonstrate that it is

entitled to licensure, OFR has established by a preponderance of the evidence

that the Default Final Order revoked Ms. ParrishÔs mortgage broker license.

1 8 . Assertive Mortgage has argued that the Default Final Order is invalid

because Ms. Parrish was not served with the Administrative Complaint on

which the Default Final Order is based. Assertive Mortgage also cites

testimony from Ms. Parrish indicating that her mortgage broker license had

expired by September 1, 2008. Accordingly, there was no license for the

Default Final Order to revoke. However, e ven if th e foregoing assertion s are

true, the undersigned is precluded from entert aining any collateral

c hallenges to the Default Final Order. See Austin Tupler Trucking, Inc. v.

Hawkins , 377 So. 2d 679, 681 (Fla. 1979)(describing how the doctrine of

administrative finality provides Ñ that there must be a terminal point in every

proceedi ng both administrative and judicial, at which the parties and the

public may rely on a decision as being final and dispositive of the rights and

issues involved therein.Ò).

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Office of Financial Regulation issue a f inal o rder

denying Assertive Mortgage, LLCÔs , application for a mortgage broker

license.

D ONE A ND E NTERED this 3rd day of December, 2021 , in Tallahassee, Leon

County, Florida.

S

G. W. C HIS ENHALL

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of December, 2021.

C OPIES F URNISHED :

H. Richard Bis bee, Esquire Joaquin Alvarez, Esquire

H. Richard Bisbee, P.A. Offic e of Financial Regulation

Suite 206 Fletcher Building

1882 Capital Circle Northeast 200 East Gaines Street

Tallahassee, Florida 32308 Tallahassee, Florida 32399

Russell C. Weigel, Commissioner Anthony Cammarata, General Counsel

Office of Financial Regulation Office of Financial Regulation

200 East Gaines Street The Fletcher Building, Suite 118

Tallahassee, Florida 32399 - 0350 200 East Gaines Street

Tallahassee, Florida 32399 - 0370

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order i n this

case.