STATE OF MICHIGAN DEPARTMENT OF LABOR AND ECONOMIC GROWTH OFFICE OF FINANCIAL AND INSURANCE SERVICES

Transcription

1 STATE OF MICHIGAN DEPARTMENT OF LABOR AND ECONOMIC GROWTH OFFICE OF FINANCIAL AND INSURANCE SERVICES Before the Commissioner of Financial and Insurance Services Office of Financial and Insurance Services, Petitioner, Case No MB v Docket No Enterprise Financial Company, Inc., Respondent. / For the Petitioner: For the Respondent: James E. Westrin (P67066) Kevin Currier Office of Financial and Insurance Services Enterprise Financial Company, Inc. 611 W. Ottawa, 3r d Floor 6230 Pepper Hill Lansing, MI West Bloomfield, MI (517) (248) FAX (517) jewestr@michigan.gov Issued and entered this day of June 2005 by John R. Schoonmaker Special Deputy Commissioner FINAL DECISION The Administrative Law Judge issued a Proposal for Decision dated April 5, She recommended that the Commissioner refuse Respondent s application for licensure under the Mortgage Brokers, Lenders and Servicers Licensing Act, 1987 PA 173, as amended, MCL et seq.

2 Page 2 Neither party filed exceptions. The factual findings in the PFD are in accordance with the preponderance of the evidence and the conclusions of law are supported by reasoned opinion. The PFD is attached, adopted, and made part of this final decision. II ORDER Therefore, it is ORDERED that Respondent s license application is denied. John R. Schoonmaker Special Deputy Commissioner

3 Page 3 STATE OF MICHIGAN STATE OFFICE OF ADMINISTRATIVE HEARINGS AND RULES In the matter of Office of Financial and Insurance Services, Petitioner v Enterprise Financial Company, Inc., Respondent / Docket No Agency No MB Agency: Office of Financial & Insurance Services Case Type: Sanction/Revocation Issued and entered this 5 th day of April, 2005 by Lauren G. Van Steel Administrative Law Judge PROPOSAL FOR DECISION PROCEDURAL HISTORY Appearances: James E. Westrin, Attorney at Law, appeared as a representative for the Office of Financial and Insurance Services, Petitioner. No attorney or representative appeared on behalf of Enterprise Financial Co., Inc., Respondent. This proceeding commenced with the filing of a Notice of Hearing dated January 4, 2005, scheduling hearing for February 22, The Notice of Hearing was issued pursuant to a Request for Hearing received by the Bureau of Hearings (now State Office of Administrative Hearings and Rules) on January 3, 2005, and an Order Referring Complaint for Hearing and Order to Respond, issued by the Commissioner of Financial and Insurance Services (hereafter Commissioner ), on December 29, 2004, along with a Complaint signed by Petitioner s Deputy Commissioner under the

4 Page 4 provisions of the Mortgage Brokers, Lenders and Servicers Licensing Act, 1987 PA 173, as amended, MCL et seq. (hereafter Act ). The Notice of Hearing was sent by certified mail to Respondent at its last known address of 6230 Pepper Hill, West Bloomfield, Michigan Further, the Notice of Hearing informed the parties that if they failed to appear at the scheduled hearing, a default might be entered pursuant to Sections 72 and 78 of the Michigan Administrative Procedures Act, 1969 PA 306, as amended, MCL et seq. (hereafter APA ). On February 22, 2005, hearing was held as scheduled. Neither Respondent, nor an attorney or representative for Respondent, appeared at the hearing. Petitioner s representative requested to be allowed to proceed in Respondent s absence pursuant to Section 72 of the APA, being MCL , and that a default be granted on behalf of Petitioner against Respondent pursuant to Section 78 of the APA, being MCL Section 72(1) of the APA provides as follows: Sec. 72. (1) If a party fails to appear in a contested case after proper service of notice, the agency, if no adjournment is granted, may proceed with the hearing and make its decision in the absence of the party. MCL (1). Further, Section 78(2) of the APA provides as follows: Sec. 78. (2) Except as otherwise provided by law, disposition may be made of a contested case by stipulation, agreed settlement, consent order, waiver, default or other method agreed upon by the parties. MCL (2).

5 Page 5 In light of Respondent s failure to appear at the properly noticed hearing, no adjournment having been granted, the undersigned proposed on the record that a default against Respondent be granted. As a result of the default, the factual allegations set forth in paragraphs 1 and 2 of the Complaint are taken as true and proven. The factual allegation set forth in paragraph 3 of the Complaint has not been proven by Respondent, i.e. that Petitioner ( Respondent in this Proposal for Decision) Enterprise Financial Company, Inc. meets the requirements set forth in the Act for licensure as a mortgage broker and mortgage lender. Petitioner also presented the testimony of Pamela K. Baker, Senior Financial Institution Examiner for the Office of Financial and Insurance Services, and offered the following exhibits, which were admitted into the record as evidence: 1. Petitioner s Exhibit #1 is an Application for Mortgage Broker, Lender, and/or Servicer License, received July 25, Petitioner s Exhibit #2 is a letter dated October 7, 2003, to Kevin Currier, Enterprise Financial Co, Inc. at the address of 6960 Orchard Lake Road, #388, West Bloomfield, Michigan from Pamela K. Baker, Office of Financial and Insurance Services, with copy of returned envelope. 3. Petitioner s Exhibit #3 is a letter dated November 3, 2003, to Kevin Currier at the address of 6230 Pepper Hill, West Bloomfield, Michigan from Pamela K. Baker, Office of Financial and Insurance Services. 4. Petitioner s Exhibit #4 is a Memorandum dated May 5, 2003, from Pamela K. Baker to Kirk Gundry, Director, Market Conduct Exams and Investigation.

6 Page 6 On March 8, 2005, a transcript of the February 22, 2005 hearing was filed (hereafter Tr ). The record was then closed. ISSUE AND APPLICABLE LAW The issue presented in this matter is whether Respondent meets the requirements for licensure as a mortgage broker and mortgage lender under the Act. Section 3(1) of the Act provides as follows: Sec. 3 (1) An application for, or renewal of, a license shall be made in writing to the commissioner on a form prescribed by the commissioner. If the commissioner determines after investigation that the experience, character, business reputation, and general fitness of the applicant and its officers, directors, shareholders, partners, and affiliates command the confidence of the public and warrant the belief that the applicant and its officers, directors, shareholders, partners, and affiliates will comply with the law and that grounds for revoking, suspending, or denying a license under this act do not exist, the commissioner shall issue a license to, or renew the license of, the applicant to act as a mortgage broker, mortgage lender, or mortgage servicer. MCL (1). Further, Section 29(2) of the Act states: Sec. 29. (2) If the commissioner finds that a licensee or registrant has violated this act or the rules promulgated under this act, the commissioner may do 1 or more of the following: * * * (b) Suspend or revoke a license or registration or refuse to issue a license or renew a license or registration. MCL (2)(b). (Emphasis supplied).

7 Page 7 FINDINGS OF FACT Based on the entire record in this matter, including the witness testimony, the exhibits and the pleadings, the following findings of fact are established: 1. On July 25, 2003, Respondent Enterprise Financial Company, Inc. filed an application, dated July 24, 2003, with the Commissioner for licensure as a mortgage broker and mortgage lender under the Act. The application was signed by Kevin Currier as Respondent s CEO. [Pet. Exh. 1; Tr, 8]. 2. On the application, Respondent stated the address of its designated correspondent as: 6960 Orchard Lake Road, #388, West Bloomfield, Michigan [Pet. Exh. 1; Tr, 8-9]. 3. On October 7, 2003, Pamela K. Baker, Senior Examiner for Petitioner, sent a letter to Kevin Currier for Respondent regarding the application for licensure. The letter, sent to the address of 6960 Orchard Lake Road, #388, West Bloomfield, MI was returned by the post office as undeliverable [Pet. Exh. 2; Tr, 9]. 4. On November 3, 2003, Ms. Baker for Petitioner sent another letter to Kevin Currier for Respondent at his stated residence address of 6230 Pepper Hill, West Bloomfield, MI The letter stated in part that Respondent must provide a correct address and telephone number where the applicant intends to conduct its business [Pet. Exh. 3; Tr, 10-11]. 5. Mr. Currier for Respondent answered Petitioner s November 3, 2003 letter, but did not respond to the inquiry for a correct address and telephone number for Respondent s place of business [Tr, 11]. 6. On May 5, 2003, Ms. Baker requested that Petitioner conduct an investigation concerning Respondent s application [Pet. Exh. 4]. 7. On November 3, 2003, an investigator for Petitioner, Elliott Purty, went to the address of 6960 Orchard Lake Road, Suite 388 in West Bloomfield, Michigan and found that the location was nonexistent because the building did not have a Suite 388. Mr. Purty then went to the location of the Respondent s branch office, as stated in Respondent s application, being 375 Orchard Lake Road, West Bloomfield, Michigan, and found that the office at that address was empty [Tr, 14-15]. 8. Mr. Purty subsequently made telephone contact with Mr. Currier and was advised by him that the new address for Respondent was 5600 West Maple, Suite 100, Building C, West Bloomfield. On November 7, 2003, Mr. Purty went to that address and did not find either Mr. Currier or Respondent Enterprise Financial Co., Inc. at the location. [Tr, 15]. 9. The Commissioner denied Respondent s application for licensure.

8 Page Respondent does not meet the requirements set forth in the Act for licensure as a mortgage broker and mortgage lender. CONCLUSIONS OF LAW Based on the above findings of fact, it is concluded that Respondent has not met its burden of proof to show by a preponderance of the evidence that it meets the requirements for licensure set forth in the Act as a mortgage broker and mortgage lender. Rather, Petitioner has shown by a preponderance of the evidence that Respondent does not meet the requirements of Section 3(1) of the Act for licensure, being MCL (1). Respondent has clearly not provided valid information to Petitioner regarding its place of business. Petitioner properly determined after investigation that the applicant and its officers, directors, shareholders, partners, and affiliates do not command the confidence of the public and warrant the belief that the applicant and its officers, directors, shareholders, partners, and affiliates will comply with the law. As such, Petitioner properly denied the Respondent s application under Section 29(2)(b) of the Act, being MCL (2)(b). RECOMMENDATIONS Based upon the above findings of fact and conclusions of law, including the default proposed to be granted against Respondent, the following recommendations are made by the undersigned to the Commissioner: 1. The above findings of fact and conclusions of law be adopted in the Commissioner s final decision and order; and

9 Page 9 2. The Commissioner refuse Respondent s application for licensure under the Act, and/or issue any other sanction or sanctions authorized by the Act or other applicable law that the Commissioner deems appropriate to the established facts and conclusions of law. Lauren G. Van Steel Administrative Law Judge