Diso v. Dep't of Commerce
| Citation | 985 N.E.2d 517 |
| Decision Date | 08 October 2012 |
| Docket Number | No. 2012–CA–25.,2012–CA–25. |
| Parties | Richard B. DISO, Plaintiff–Appellant v. DEPARTMENT OF COMMERCE, Defendant–Appellee. |
| Court | United States Court of Appeals (Ohio) |
OPINION TEXT STARTS HERE
Glenn Littlejohn, Cleveland, OH, Richard B. Disco, Lewis Center, OH, for Plaintiff–Appellant.
Michael Dewine, Ohio Attorney General, Hilary Damaser, Columbus, OH, for Defendant–Appellee.
{¶ 1} This case is before the Court on appeal from the March 12, 2012 decision of the Delaware County Court of Common Pleas that affirmed the Ohio Department of Commerce, Division of Financial Institutions' [“Division”], July 7, 2010 Order denying appellant Richard Diso's [“Diso”] 2008 loan officer's renewal application upon a finding that his character and general fitness did not command the confidence of the public and did not warrant the belief that the business will be operated honestly and fairly in compliance with the purposes of R.C. 1322.01 through 1322.12.
{¶ 2} Diso held a loan officer license between June 15, 2004 and April 30, 2008. (State's Exhibit 7).
{¶ 3} On or about February 26, 2008, Diso sent the Division a “Mortgage Broker/ Loan Officer Notice of Judgment,” in compliance with Ohio Adm.Code1301:8–7–19(C). (See, State's Exhibit 6). This form, received by the Division on March 12, 2008, informed the Division of default judgments entered against Diso for credit card debts on October 30, 2007 (“Discover Bank”; $17,539.74 plus interest); December 7, 2008 (“FIACard Services”; $23,820.14 plus interest); and March 18, 2008 (“Capital One Bank”; $12,935.53 plus interest). (T. Apr. 21, 2009 at 26; 34). Attached to the form was a letter and documentation from Diso in which Diso explained his frustration with recently enacted laws that permitted credit card companies to increase interest rates,
At the time this law went into affect [sic.], I just had surgery and later complications from the surgery. Making my normal minimum payments was not a problem. However, when my rates shot up on all of my accounts, I was forced to use my IRA account funds to keep up with the outrageous payments. Eventually I emptied the account and called the companies and asked them to lower my payments. They refused and I went into default on all credit cards.
Enclosed you will find my credit reports showing my perfect payment history on all my accounts and when the late payments started in 2006. I wrote and had conversations with Senator Brown's staff, § letter enclosed} and currently working with Senator Voinovich's office to rectify this matter.
I should not have to forfeit my license due to the greed of politicians and no fault of my own. The collection agencies will not take reasonable payments and I refuse to pay the entire amount with penalties and late fees and still have a bad credit rating. That is un American [sic.] and I will fight it forever.
I am asking you not revoke my licenses. This will further destroy my life. I live a cash only life style, which is very difficult and almost impossible in a bad market.State's Exhibit 6. (Letter dated Feb. 26, 2008 from Diso to the Division of Finance).
{¶ 4} On or about April 24, 2008 the Division received Diso's 2008 loan officer license renewal application. (T. Apr. 21, 2009 at 13; 32; State's Exhibit 4).
{¶ 5} On or about August 7, 2008, the Division sent Diso a “Letter of Investigation” requesting Diso provide the Division with the facts surrounding the unpaid civil judgments. (T. Apr. 21, 2009 at 28–29; State's Exhibit 8).
{¶ 6} In response to its request for information, on November 5, 2008 the Division received a response from Diso that included a letter, copies of the judgment entries, certificates of judgment and three letters of recommendation. (T. Apr. 21, 2009 at 28; 30; State's Exhibit 5; State's Exhibit 9). In the letter, Diso stated,
In Spring of 2006, interest rates on all my credit cards soared as high as 30%. Up to that point, I had not been late on any cards. I had called all the credit card companies to ask them why my rates were raised and they responded we are allowed by law to raise them. At the time I just had surgery and complications from it. I explained this to the card companies and told them I could make the payments at the original interest rates, but not at the higher rate. They a [sic.] told me they would not lower the rates. I kept making the outrageous payments, taking money from my IRA until it was gone. I then defaulted on the credit cards.
I called my elected officials, letters enclosed, and asked them under what law was this allowed? To this day none of them has helped me or knew the laws. Imagine, lawmakers not knowing the law. One reason why this country is so screwed up.
Currently I am not making any payments and have no plans on making payments until I get answers on the law that allows credit card companies to raise rates. I am talking with several law firms to represent me fighting these judgements. [sic.]
I have 18 plus years as a residential loan officer and have never been in legal or moral trouble. I plan on doing this years to come.[Sic.] Taking away my licenses will destroy my life. I can give you my resume' and you can check my past employment. I will continue to fight this and eventually win.
Please contact me if further information is needed. I will work with the State, but I am pursuing legal action.
State's Exhibit 5.
{¶ 7} In a “Notice of Intent to Deny Loan Officer License Renewal” dated January 9, 2009, the Division informed Diso, of its intent to deny his 2008 loan officer license renewal application pursuant to R.C. 119.07. Per R.C. 119.07, the Notice also informed Diso that he had a right to request a hearing, which he did. (State's Exhibit 1).
{¶ 8} On February 25, 2009, the parties appeared for the administrative hearing. On the record at the hearing, Diso requested a continuance in order to obtain counsel, which was granted by the hearing officer.
{¶ 9} The administrative hearing reconvened on April 21, 2009, at which time the Division presented its case-in-chief. After the Division presented its evidence, Diso asked for an additional continuance before presenting his case-in-chief, which the hearing officer granted over the Division's objection.
{¶ 10} The hearing was scheduled to reconvene for Diso's case-in-chief on June 30, 2009. However, the day prior, Diso filed for Chapter 7 bankruptcy, and providednotice to the Division of the filing. Diso requested that the Division stay its administrative proceedings in accordance with 11 U.S.C. § 362(a)—the Bankruptcy stay provision. Although the Division disputed the application of Section 362(a), the hearing officer continued the hearing, and later stayed the matter until resolution of the bankruptcy.
{¶ 11} On October 14, 2009, Diso obtained a bankruptcy discharge. Upon the request of the hearing officer, the parties filed formal statements on their respective positions on whether the Division could proceed. The Division indicated its intention to proceed, and the matter was rescheduled to conclude the hearing on April 28, 2010. A hearing was set for April 28, 2010. Counsel for both parties appeared at the hearing. Diso did not personally appear on April 28; however, several Exhibits were submitted as evidence on his behalf by his counsel. Diso's counsel also strongly argued that the Division could not proceed because of the automatic bankruptcy stay. The Division presented additional testimony concerning the effect, or lack thereof, of the bankruptcy on this case, since Diso had not filed for bankruptcy or given any indication he was insolvent before the hearing began in April 2009.
{¶ 12} On May 14, 2010, the hearing officer issued a Report and Recommendation concluding,
[Diso] accumulated over $100,000.00 in debt, which (was discharged in bankruptcy) demonstrates [Diso's] lack of financial responsibility to command the confidence of the public to warrant the belief that his business would be conducted honestly and fairly in compliance with the purposes of the Ohio Mortgage Broker Act. R.C. 1322.041(A)(10).
{¶ 13} The report concluded that the Division had met its burden of proof, and recommended that the Division deny Diso's 2008 loan officer license renewal application. Diso filed objections, again referencing the bankruptcy and arguing the effect of the automatic stay.
{¶ 14} On July 7, 2010, the Division issued a final order denying Diso's 2008 loan officer renewal application. This order further stated,
The Division modifies paragraph 34 of the Report and Recommendation to remove the words “financial responsibility” and the last sentence, “The superintendent shall not use a credit score as the sole basis for a license denial [.]” because those words and the last sentence were not included in R.C. 1322.041(A)(6) prior to January 1, 2012 amendments. The Division also modifies paragraph 37 of the Report and Recommendation to substitute the words “lack of character and general fitness” for the words “lack of financial responsibility” because the words “financial responsibility” were not included in R.C. 1322.041(A) ().
{¶ 15} Diso did not file an application to renew his loan officer license in 2009. Diso filed an appeal pursuant to R.C. 119.12.
{¶ 16} On March 12, 2012, the Court of Common Pleas affirmed the Division's Order. The trial court found,
The [bankruptcy] stay was not in effect at the time of the April 28, 2010 hearing or the July 7, 2010 Division Order. More importantly, the automatic stay provision does not prevent an administrative agency from taking necessary action pursuant to its regulatory authority. Ohio State Bar Association v. Dalton, 124 Ohio [St.]3d 154 [514], 2010-Ohio-619 .
{¶ 17} The trial court further held that the Division Order was supported by reliable, probative and substantial evidence.
{¶ 18} This case is before this Court on appeal from the March 12, 2012 decisio...
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...to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Diso v. Dept. of Commerce, 2012-Ohio-4672, 985 N.E.2d 517, ¶29 (5th Dist.). {¶8} Appellant contends that it was not properly a party to this action and that any judgment rendere......