ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This is a contested case brought by Petitioner
James Fewster challenging the
decision of the South Carolina Department of Consumer Affairs (“Department”)
which denied Petitioner’s Originator License for Mortgage Broker Company
Originators based on Petitioner’s application and the South Carolina Law
Enforcement Division’s (“SLED”) criminal records check. A hearing was held
before me on March 15, 2006 at the offices of the Administrative Law Court (“ALC”
or “Court”) in Columbia, South Carolina.
FINDINGS OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion of
parties, I make the following findings of fact by a preponderance of evidence:
1. Notice
of the time, date, place and subject matter of the hearing was given to
Petitioner and Respondent.
2. Petitioner
Fewster, in completing his application, Supplemental Form O for an originator’s
license, submitted a sworn statement that all information contained in the
application is true, current and correct. Petitioner answered “YES” to the
question on the form, “Have you ever been convicted of a felony or an offense
involving breach of trust, moral turpitude or dishonest dealings within the
last ten years?”
3. Petitioner’s
arrest record (Respondent’s Exhibit #2, a copy of which is appended to this
Final Order) shows two convictions within the last ten years for fraudulent
checks.
4. Petitioner
is embarrassed by the two fraudulent check convictions which occurred
approximately nine years ago as a result of faulty record keeping. The checks
were written for the amounts of $52.70 and $51.29 respectively. He made an
honest mistake in balancing his checkbook and was not aware of the mistake
until warrants for his arrest were brought to his attention.
5. Petitioner
has been a licensed Mortgage Loan Originator since 1998 and has built a
successful career in the industry. In particular, during his employment as a
loan officer, Petitioner has not received any complaints regarding his lending
activities from either his clients or his employers and has not been the
subject of any disciplinary actions by licensing or other regulatory agencies.
CONCLUSIONS
OF LAW
Based
upon the above findings of fact, I conclude the following as a matter of law:
1. This
Court has jurisdiction over this contested case proceeding pursuant to S.C.
Code Ann. § 37-6-414 (Supp. 2005), S.C. Code Ann. § 40-58-55(A) (Supp. 2005),
and S.C. Code Ann. § 1-23-600(B) (Supp. 2005).
2. In
presiding over this contested case, this Court serves as the finder of fact and
makes a de novo determination regarding the licensing matters at issue. See S.C. Code Ann. § 1-23-600(B) (Supp. 2005); Marlboro Park Hosp. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573, 577-79, 595
S.E.2d 851, 853-854 (Ct. App. 2004); Brown v. S.C. Dep’t of Health &
Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002).
3. In
order to be licensed as a mortgage loan originator, an applicant must be at
least eighteen years of age and must have at least six months of experience in
residential mortgage lending or complete eight hours of continuing education
within ninety days of employment. S.C. Code Ann. § 40-58-50(D) (Supp. 2005).
Further, before issuing a license to a mortgage loan originator, the licensing
authority must find that the applicant’s “financial responsibility, experience,
character, and general fitness…are such as to command the confidence of the
community and to warrant belief that the business may be operated honestly,
fairly, and efficiently according to the purposes of this chapter [i.e.,
Chapter 58 of Title 40, which pertains to the licensing of mortgage loan
brokers].” S.C. Code Ann. § 40-58-60(A) (Supp. 2005). In determining whether
an applicant has the requisite character and fitness to be licensed as a
mortgage loan originator, the licensing authority may consider such factors as
whether the applicant has “(1) violated a provision of this chapter or an order
of the [D]epartment; (2) withheld material information in connection with an
application for a license or its renewal, or made a material misstatement in
connection with the application; [or] (3) been convicted of a felony or of an
offense involving breach of trust, moral turpitude, fraud, or dishonest dealing
within the past ten years.” See S.C. Code Ann. § 40-58-55(A).
4. The record shows Petitioner has two convictions
for fraudulent checks, which is an offense involving fraud under S.C.
Code Ann. § 40-58-55(A)(3) (2005).
However,
Petitioner has been a successful loan officer since 1998 with an unblemished
track record in the business. Petitioner did
disclose the convictions on his application which resulted from an
unintentional act, and the two convictions are almost outside the ten year
window. Therefore, I find that Petitioner does possess the financial
responsibility, experience, character, and general fitness necessary to secure
licensure as a mortgage loan originator.
ORDER
Based upon the above Findings of Fact and Conclusions of
Law state above,
IT IS HEREBY ORDERED that the South
Carolina Department of Consumer Affairs shall GRANT Petitioner Fewster’s
application for licensure as a mortgage loan originator.
AND
IT IS SO ORDERED.
_________________________________
John D. McLeod
Administrative
Law Judge
March 22, 2006
Columbia, South Carolina |