South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Melissa Ferguson vs. SCDCA

AGENCY:
South Carolina Department of Consumer Affairs

PARTIES:
Petitioner:
Melissa Ferguson

Respondent:
South Carolina Department of Consumer Affairs
 
DOCKET NUMBER:
07-ALJ-30-0315-CC

APPEARANCES:
For the Petitioner:
Pro se

For the Respondent:
Carolyn Grube Lybarker, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Court (“ALC”) for a final order and decision following a contested case hearing pursuant to S.C. Code Ann. § 40-58-55(A) (Supp. 2006). Petitioner Melissa Ferguson (“Ferguson”) challenges the decision of Respondent South Carolina Department of Consumer Affairs (“Department”) denying her application for a mortgage loan originator’s license pursuant to § 40-58-55.

The Department denied Ferguson’s application because it found that Ferguson has had four criminal convictions involving offenses of moral turpitude within the past ten years. After notice to the parties, the court held a hearing on this matter on September 13, 2007. After carefully weighing all of the evidence, the court finds that Ferguson’s application for a mortgage loan originator’s license should be granted.

ISSUE

Does Ferguson possess the requisite financial responsibility, character, and general fitness to command the confidence of the community and to warrant the belief that her business will be operated honestly, fairly, and efficiently such that she should be granted a mortgage originator’s license?


FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and taking into consideration the burden of persuasion by the parties, the court makes the following Findings of Fact by a preponderance of the evidence.

In March 2007, Melissa Ferguson applied for a license to work as a mortgage originator at First Premiere Mortgage Inc. d/b/a Upstate Carolina Mortgage in Easley, South Carolina. The Department denied Ferguson a mortgage originator’s license because Ferguson’s criminal record revealed four convictions for writing fraudulent checks in 1998. Ferguson disclosed these convictions on her application to the Department.

At the hearing, Ferguson fully accepted culpability for the convictions. However, she testified that she wrote the fraudulent checks in the early 1990s because she believed she had no other way to provide for her children’s basic needs during a time when she was attempting to extricate herself from an abusive relationship. She was not charged or convicted for the bad checks until almost five years later.

Ferguson testified that her life has changed significantly since she wrote the fraudulent checks. She performs charity work for Safe Harbor and the United Way. She has had no further trouble with the law since her 1998 convictions. She further feels that she would be a great help to people in the mortgage industry.

LAW

Based upon the foregoing Findings of Fact, the court concludes the following as a matter of law.

1. Jurisdiction

Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to S.C. Code Ann. § 37-6-414 (Supp. 2006), S.C. Code Ann. § 40-58-55(A) (Supp. 2006), and S.C. Code Ann. § 1-23-600(B) (Supp. 2006). The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).

In presiding over this contested case, the 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. 2006); 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).

2. Mortgage Loan Originator Requirements

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’ 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. 2006). Further, before issuing a license to a mortgage loan originator, the Department 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 the belief that the business may be operated honestly, fairly, and efficiently according to the purposes of this chapter . . . .” S.C. Code Ann. § 40-58-60(A) (Supp. 2006). If these requirements have not been met, the Department is required to refuse the license. Id. (“If the department does not so find, it shall refuse to license the applicant . . . .”) (emphasis added).

In determining whether an applicant has the requisite character and fitness to be licensed as a mortgage loan originator, the court may consider factors such as whether the applicant has “(1) violated a provision of this chapter or an order of the department; (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.” S.C. Code Ann. § 40-58-55(A) (Supp. 2006). Whether an applicant has demonstrated the requisite financial responsibility, experience, character, and fitness is within the discretion of the court. See S.C. Code Ann. § 1-23-600(B) (Supp. 2006); Marlboro Park Hosp., 358 S.C. at 577-79, 595 S.E.2d at 853-54; Brown, 348 S.C. at 512, 560 S.E.2d at 413; see also S.C. Code Ann. § 40-58-60(A) (Supp. 2006).


3. Conclusions

After carefully weighing the evidence and applying the law as discussed above, the court finds that Ferguson’s application for a mortgage originator’s license should be granted.

The undisputed evidence shows that Ferguson’s offenses occurred more than ten years ago during a troubled time in Ferguson’s life. The court further observes that Ferguson’s convictions for those offenses will be more than ten years old, and therefore outside the statutory lookback period, in just a few months. The Department indicated that Ferguson would be eligible to re-apply at that time with a clean criminal background check. Under these circumstances, the court finds it appropriate to grant Ferguson’s application, despite her prior convictions nine years and eight months ago for offenses committed almost fifteen years ago. Ferguson has demonstrated no further criminal activity or financial irresponsibility since that time and has turned her life in a positive direction since the time of her offenses. Therefore, the court finds that Ferguson possesses the requisite financial responsibility, character, and general fitness to command the confidence of the community and to warrant the belief that her business will be operated honestly, fairly, and efficiently such that she should be granted a mortgage originator’s license.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above, it is

ORDERED that the Department shall grant Petitioner’s application for a mortgage loan originator’s license in accordance with §§ 40-58-50 et seq. (Supp. 2006).

IT IS SO ORDERED.

______________________________

PAIGE J. GOSSETT

Administrative Law Judge

September 28, 2007

Columbia, South Carolina


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