Dampier v. Department of Banking and Finance, Div. of Finance
| Decision Date | 31 January 1992 |
| Docket Number | No. 90-3735,90-3735 |
| Citation | 593 So.2d 1101 |
| Parties | 17 Fla. L. Weekly D381 Ebba DAMPIER, Appellant, v. DEPARTMENT OF BANKING AND FINANCE, DIVISION OF FINANCE and Raymond Beaty; Phillip and Mary Crowder, Trustee for James Crowder; Phillip and Mary Crowder, Trustee for Deborah Crowder; Cecil D. and Diane M. Youmans; Glenn E. and Alice L. Hunt; Obe D. and Virginia K. Coleman; Barbara Spencer; and Nancy Scrivner, Appellees. Raymond BEATY; Phillip and Mary Crowder, Trustee for James Crowder; Phillip and Mary Crowder, Trustee for Deborah Crowder; Cecil D. and Diane M. Youmans; Glenn E. and Alice L. Hunt; Obe D. and Virginia K. Coleman; Barbara Spencer; and Nancy Scrivner, Appellees/Cross Appellants, v. DEPARTMENT OF BANKING AND FINANCE, DIVISION OF FINANCE and Ebba Dampier, Cross Appellees. |
| Court | Florida District Court of Appeals |
Robert P. Gaines of Beggs & Lane, Pensacola, for appellant/cross appellee Dampier.
William G. Reeves, Gen. Counsel, Gary L. Printy and Frank Steele Jones, Asst. Gen. Counsel, Florida Dept. of Banking and Finance, Tallahassee, for appellee/cross appellee Dept. of Banking and Finance, Div. of Finance.
Tom R. Moore, Tallahassee, for appellees/cross appellants.
Ebba Dampier (Dampier) appeals, and Raymond Beaty and others 1 (the Beaty group) cross appeal, a Final Order of the Department of Banking and Finance (Department) determining eligibility for, and the amount of, recovery from the Mortgage Brokerage Guaranty Fund (the Fund). We affirm in part, and remand for further proceedings.
The Fund was established as of September 1, 1977. Ch. 77-397, Sec. 10, Laws of Fla. Upon approval by the Division of Finance (Division), payments are to be made from the Fund, pursuant to the provisions of Section 494.044, Florida Statutes, "to any party to a mortgage financing transaction who is adjudged by a Florida court of competent jurisdiction to have suffered monetary damages as a result of any violation of [Chapter 494] committed by a licensee or registrant." Sec. 494.042(2), Fla.Stat. (1989).
To the extent relevant to discussion of the issues presented by this appeal, Section 494.044, Florida Statutes (1989), reads as follows:
(1) Any person who meets all of the conditions prescribed in s. 494.043 may apply to the [D]epartment for payment to be made to such person from the ... Fund in the amount equal to the unsatisfied portion of that person's judgment or judgments or $20,000, whichever is less, but only to the extent and amount reflected in the judgment as being actual or compensatory damages. As to claims against any one licensee or registrant, payments shall be made to all persons meeting the requirements of s. 494.043 upon the expiration of 2 years from the date the first complete and valid notice is received by the [D]epartment. Persons who give notice after 2 years from the date the first complete and valid notice is received and who otherwise comply with the conditions precedent to recovery may recover from any remaining portion of the $100,000 aggregate, in an amount equal to the unsatisfied portion of that person's judgment or $20,000, whichever is less, but only to the extent and amount reflected in the judgment as being actual or compensatory damages, with claims being paid in the order notice is received until the $100,000 aggregate has been fully disbursed.
(2) The claimant shall assign his right, title, and interest in the judgment, to the extent of his recovery from the [F]und, to the [D]epartment and shall record, at his own expense, the assignment of judgment in every county where the judgment is recorded.
(3) Payments for claims shall be limited in the aggregate to $100,000, regardless of the number of claimants involved, against any one mortgage broker or registrant. If the total claims exceed the aggregate limit of $100,000, the [D]epartment shall prorate the payment based on the ratio that the person's claim bears to the total claims filed.
....
To the extent relevant to discussion of the issues presented by this appeal, Section 494.043, Florida Statutes (1989), reads as follows:
(1) Any person who was a party to a mortgage financing transaction shall be eligible to seek recovery from the ... Fund if:
(a) The person has recorded a final judgment issued by a Florida court of competent jurisdiction in any action wherein the cause of action was based on s. 494.042(2);
(b) The person has caused to be issued a writ of execution upon such judgment and the officer executing the same has made a return showing that no personal or real property of the judgment debtor liable to be levied upon in satisfaction of the judgment can be found or that the amount realized on the sale of the judgment debtor's property pursuant to such execution was insufficient to satisfy the judgment;
(c) The person has made all reasonable searches and inquiries to ascertain whether the judgment debtor possesses real or personal property or other assets subject to being sold or applied in satisfaction of the judgment, and by his search he has discovered no property or assets or he has discovered property and assets and has taken all necessary action and proceedings for the application thereof to the judgment, but the amount thereby realized was insufficient to satisfy the judgment;
(d) The person has applied any amounts recovered from the judgment debtor, or from any other source, to the damages awarded by the court;
(e) The person, at the time the action was instituted, gave notice and provided a copy of the complaint to the [D]ivision by certified mail ...; and
(f) The act for which recovery is sought occurred on or after September 1, 1977....
(2) The requirements of paragraphs (1)(a), (b), (c), (d), and (e) are not applicable if the licensee or registrant upon which the claim is sought has filed for bankruptcy or has been adjudicated bankrupt; however, in such event the claimant shall file a proof of claim in the bankruptcy proceedings and shall notify the [D]epartment by certified mail of the claim by enclosing a copy of the proof of claim and all supporting documents.
On or about April 9, 1987, the Division received a letter from Dampier's counsel, which letter read, "Pursuant to the provisions of Section 494.042 [sic ], Florida Statutes, I am enclosing a copy of the complaint of Ebba Dampier against Byron D. Beeler, a licensed mortgage broker." The copy of the complaint referred to reflected that the original had been filed in the circuit court for Okaloosa County. (However, there was nothing to indicate when it had been filed.) The complaint alleged that Beeler "[held] himself out as a licensed mortgage broker and investment counsellor," and that his office was in Okaloosa County. According to the complaint, Beeler had made certain "intentional or negligent misrepresentation[s]" to Dampier to induce Dampier to make, or to participate in making, mortgage loans to third parties; Dampier made, or participated in making, the loans in reasonable reliance upon Beeler's misrepresentations; and, as a result of Beeler's misrepresentations, Dampier suffered damage.
On August 13, 1987, Beeler filed a Chapter 11 bankruptcy proceeding in the United States Bankruptcy Court for the Northern District of Florida, Pensacola Division. (On Beeler's motion, his bankruptcy proceeding was converted to a Chapter 7 case on July 20, 1988.) On January 14, 1988, Dampier's counsel obtained an order from the bankruptcy court lifting the automatic stay, and allowing the action pending in the Okaloosa County circuit court to proceed. Dampier obtained a default final judgment against Beeler in the Okaloosa County action on September 29, 1988. The judgment awarded $37,403.19 in damages. On, or shortly after, October 18, 1988, the Division received a letter from Dampier's counsel together with copies of the bankruptcy court's orders lifting the automatic stay and converting Beeler's case to a Chapter 7, and the Okaloosa County circuit court's final judgment (which had been recorded).
As the result of a telephone conversation on or about August 7, 1989, with an attorney employed by the Office of the Comptroller, on August 15, 1989, Dampier's counsel caused to be issued a writ of execution for the Okaloosa County final judgment. After some initial difficulty obtaining the cooperation of the Walton County Sheriff, on November 8, 1989, the Sheriff made a return "NULLA BONA because no personal or real property of Byron D. Beeler, the judgment debtor, upon which levy could be made in satisfaction of the judgment can be found." Copies of the writ of execution and the return were mailed by Dampier's counsel to the Division, which received them on November 14, 1989.
While Dampier was attempting to perfect a claim, other claims were being made on account of the activities of Beeler. 2 On or about January 21, 1988, the Division received a claim from counsel for the Beaty group. This included a copy of a proof of claim in the aggregate amount of $122,500.00, filed in the Beeler bankruptcy proceeding on or about December 21, 1987. 3 On January 3, 1989, the Division received a claim from an attorney representing Jasper Mask (Mask). This was supplemented on March 14, 1989, when the Division received from Mask's counsel a copy of a proof of claim in the amount of $119,109.00, filed in the Beeler bankruptcy proceeding on November 2, 1987. Finally, on November 9, 1989, the Division received a claim from Robert D. and Anne M. Vinsant. This claim was also accompanied by a copy of a proof of claim filed in the Beeler bankruptcy proceeding on or about September 6, 1988, in the amount of $20,000.00.
On January 22, 1990,...
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Werner v. State, Dept. of Ins. and Treasurer, 96-1311
...reviewing court owes deference to an agency's interpretation of a statute the agency administers, Dampier v. Department of Banking and Fin., Div. of Fin., 593 So.2d 1101 (Fla. 1st DCA 1992), but "judicial adherence to the agency's view is not demanded when it is contrary to the statute's pl......