ALJDEC

01F-R001022-BFS · Department of Building and Fire Safety · 2001-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 19, 2001. APPEARANCES: Complainant Roy Murphy represented himself. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this case, Complainant seeks recovery from the consumer recovery fund for damages sustained as a result of Respondent’s failure to pay off a trade-in mobile home where Respondent induced Complainant’s purchase of a new mobile home with the promise that Respondent would take Complainant’s trade in and pay off the balance. As a result of Respondent’s wrongful conduct, Complainant has been damaged in the amount of $14,614.00. Complainant has sustained his burden of proof and as a result, the undersigned, for the reasons that follow, recommends a payout in the amount of $14,614.00. FINDINGS OF FACT 1. Respondent, at all times pertinent to this matter, was a licensed mobile home dealer in the State of Arizona, holding license number 6848, Class D-12. 2. On November 12, 1999, Complainant entered into a contract to purchase a 1998 Cavco manufactured home from Respondent in the amount of $41,450.49. As a part of the agreement, Respondent agreed to take as a trade Complainant’s 1994 Holiday Rambler. Complainant had borrowed funds to purchase the 1994 Holiday Rambler. The note securing the loan on the Holiday Rambler was and continues to be held by U.S. Bank. Complainant was and continues to be the obligor on the note. As of the time of this hearing, Complainant still owed a total of $14,614.00 on the note. 3. In order to induce Complainant to purchase the new Cavco, Respondent agreed to take the Holiday Rambler in as a trade-in and pay off the debt that Complainant still owed to U.S. bank. Complainant then transferred possession of the Holiday Rambler to Respondent. The amount of the loan owed against the Holiday Rambler was then rolled into Complainant’s new loan on the Cavco. 4. Respondent did not pay off the loan on the Holiday Rambler and has failed or refused to do so. As a result, Complainant is still obligated to pay to U.S. Bank the amount of $14,614.00. As the evidence demonstrates, U.S. bank is seeking a judgment against Complainant for the $14,614.00 amount. Neither Complainant nor U.S. Bank is in possession of the Holiday Rambler and Complainant does not hold title to the Holiday Rambler. CONCLUSIONS OF LAW 1. The complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 2. Arizona Revised Statutes § 41-2190(B) provides that any consumer damaged by the failure of a principal “to perform a sales agreement. . .” may seek recovery from the consumer recovery fund.” 3. Complainant is a consumer as that term is used in the applicable statute. A.R.S. § 41-2142(7). 4. The evidence as set forth in Findings of Fact Paragraphs Two, Three, and Four above demonstrate that Complainant falls within the purview of A.R.S. §41-2190(B). Complainant is legally obligated to pay to U.S. Bank the amount of $14,614.00 for the Holiday Rambler which he does not possess. On the basis of representations made by Respondent, and to which he apparently does not have title. Complainant has therefore been damaged in the amount of $14,614.00. 5. In his complaint, Complainant also seeks interest on the amount which he will pay to U.S. Bank. Interest, however, is not something that can be awarded from the recovery fund. A.R.S. §41-2188(D). 6. Because the undersigned has found that Complainant is entitled to recovery from the consumer recovery fund in this case, the undersigned must also impose a concomitant license suspension upon Respondent pursuant to A.R.S. § 41-2190(D). RECOMMENDED DECISION In view of the foregoing, it is recommended that on the effective date of the final order in this matter that the Director of the Department of Building and Fire Safety shall commence and finalize payment procedures from the consumer recovery fund to Complainant in the amount of $14,614.00.

It is further ordered that on the effective date of the final order in this matter that Respondent’s license, No. 6848, Class D-12, shall be suspended until such time as Respondent has repaid to the fund in full the amount of $14,614.00 plus interest at the rate of ten percent per year. Done this day, May 8, 2001

______________________________________ Gregory L. Hanchett Administrative Law Judge

. . . Original transmitted by mail this ____ day of ____________, 2001, to:

Department of Building and Fire Safety N. Eric Borg ATTN: Shawna Blank East Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826