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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