ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
The
above-captioned matter comes before this Court pursuant to S.C. Code Ann. §
40-58-55(A) (Supp. 2005) for a contested case hearing. Petitioner Jenene
Gourdine seeks review of the decision of Respondent South Carolina Department
of Consumer Affairs (Department) to deny her application for a mortgage loan
originator’s license. The Department denied Petitioner’s application because
she had been convicted of making a fraudulent check within the past ten years.
After timely notice to the parties, a hearing of this case was held on October
11, 2006, at the South Carolina Administrative Law Court in Columbia, South
Carolina. Based upon the evidence presented at the hearing, I find that
Petitioner’s application for a mortgage loan originator’s license should be
granted.
FINDINGS
OF FACT
Having
carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of
the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
1. On
or about May 15, 2006, Petitioner Jenene Gourdine submitted an application for
a mortgage loan originator’s license to the Department. Among other things,
the application contained the following question regarding Petitioner’s
criminal history:
Have you ever
been convicted of a felony or of an offense involving breach of trust, moral
turpitude or dishonest dealings within the past ten years? (Include all
offenses other than minor traffic violations.) Provide details about the
offense, including conviction date, court, penalty and attach a certified copy
of the Criminal Docket Sheet and the Presentence Investigation Report.
(Resp’t Ex. # 1,
at 2.) In response to this question, Petitioner checked the box marked “YES”
and attached an additional sheet to the application, in which she explained the
circumstances surrounding her prior convictions for writing bad checks. In
addition, Petitioner subsequently faxed to the Department documentation from
Charleston County authorities regarding her convictions.
2. Petitioner
has been convicted at least twice in the past ten years for making fraudulent
checks. These fraudulent check convictions resulted from bad checks Petitioner
had written from her checking account after her husband, an interstate truck
driver, had taken money out of the account with an ATM card and had not
informed Petitioner of the withdrawals. Petitioner has paid the fines imposed
for the convictions and made restitution for the bad checks, and she and her
husband have improved how they communicate regarding their finances.
Petitioner takes full responsibility for the bad checks and has worked diligently
to repair her finances and remedy her errors. However, based upon these
convictions, which, under the law, are defined as crimes involving fraud, the
Department denied Petitioner’s application for a mortgage loan originator’s
license. Petitioner now challenges that denial before this Court.
3. Petitioner
has been employed in the mortgage loan origination business since 1999 and has
built a successful career in the industry. In particular, during her
employment as a mortgage loan originator, Petitioner has not received any
complaints regarding her lending activities from her clients or employers, has
maintained good working relationships with lenders, and has not been the
subject of any disciplinary actions by licensing or other regulatory agencies.
In short, there is nothing in the record to suggest that Petitioner does not
have the financial responsibility, experience, character, and fitness necessary
to operate as a mortgage loan originator in an honest, fair, and efficient
manner in compliance with state law.
CONCLUSIONS
OF LAW
Based upon the foregoing 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, 853-54 (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. In
the case at hand, Petitioner has been convicted of crimes involving fraud
within the past ten years. Nevertheless, when those failings are balanced
against Petitioner’s unblemished track record as a successful mortgage loan
originator and the mitigating circumstances surrounding her criminal offenses,
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 Findings of Fact and Conclusions of Law stated above,
IT
IS HEREBY ORDERED that the Department shall GRANT Petitioner’s
application for licensure as a mortgage loan originator.
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
1205
Pendleton Street, Suite 224
Columbia,
South Carolina 29201-3731
October 12, 2006
Columbia, South Carolina |