ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This is a contested case brought by Petitioner
Alicia E. Crouch 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 May 30, 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
Crouch, in completing her 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 “NO” 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 shows four convictions within the last ten years for fraudulent
checks. In fact, Petitioner’s arrest record shows that the four convictions
for fraudulent checks all occurred within the last five years.
4. Petitioner
is embarrassed by the four fraudulent check convictions which occurred as a
result of complications during her divorce from her former husband. Petitioner
was unaware of the convictions when applying for an Originator’s license.
Petitioner believed that all of the charges had been dropped and the matters
had been resolved because Petitioner paid restitution and court costs. There
were actually seven warrants issued against Petitioner for fraudulent checks.
Three charges were dismissed. However, the remaining four resulted in
convictions.
5. While
this Court is sympathetic with Petitioner, we are bound by the information
contained in the SLED Records check.
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 four
convictions for fraudulent checks, which is an offense involving fraud under S.C.
Code Ann. § 40-58-55(A)(3) (2005). Accordingly,
since Petitioner has four convictions within the last ten years for
fraudulent checks, pursuant to S.C. Code Ann. § 40-58-55 (2005), the
Department’s refusal to license Petitioner was proper.
Based on these four convictions, I find that Petitioner does not 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 DENY Petitioner Crouch’s
application for licensure as a mortgage loan originator.
AND
IT IS SO ORDERED.
_________________________________
John D. McLeod
Administrative
Law Judge
June 2, 2006
Columbia, South Carolina |