ALJDEC

01F-R012027-BFS · Department of Building and Fire Safety · 2002-04-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 28, 2002. APPEARANCES: Jared Porter appeared on his own behalf. 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 conversion of Complainant’s $1,500.00 down payment made toward the purchase of a mobile home that Respondent never delivered. Respondent never returned the $1,500.00 despite repeated assurances that it would do so. As a result of Respondent’s wrongful conduct, Complainant has been damaged in the amount of $1,500.00. 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 $1,500.00. 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 7622, Class D-8. 2. In August, 2001, Complainant sought to purchase from Respondent a mobile home and land package costing $105,000.00. Complainant applied for a residential loan through Respondent to accomplish the purchase of the mobile home. On August 24, 2001, Complainant gave Respondent $1,500.00 in the form of a check made out to Respondent. Respondent cashed the check on August 27, 2001. 3. After not hearing from Respondent for several weeks, Complainant began calling Respondent to find out about the progress on the loan application. Complainant was unable to locate Respondent. Approximately two weeks later, Complainant found Respondent. Respondent informed Complainant that Respondent had moved to a new office. Respondent also informed Complainant that everything was going well in the loan application. Respondent further reiterated that Complainant would be in his new home by November, 2001. 4. Approximately two weeks of additional time went by when Complainant again called Respondent to check on the status of the loan application. This time, Complainant’s phone call was met with a message indicating that Respondent’s phone had been disconnected. Complainant then drove to Respondent’s office location only to learn that Respondent had been evicted. 5. Complainant was able to eventually track down Respondent once again. At that point, Respondent agreed to return the down payment money to Complainant. Respondent, however, kept putting Complainant off, using different excuses. 6. Finally, in late November, 2001, Complainant contacted one of Respondent’s principals, Tony Helm, and indicated that he wished to come and pick up the $1,500.00. According to Complainant, Helm threatened to “put a bullet in the back “ of Complainant’s head if Complainant even approached him. Understandably, Complainant at that point became convinced that Respondent was not going to return his money and filed the complaint which resulted in this recovery fund hearing. Complainant has never received his $1,500.00 back. 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 disclosed at hearing and set forth above demonstrates that Complainant falls within the purview of A.R.S. §41- 2190(B). Complainant has lost $1,500.00 dollars as a result of Respondent’s failure to perform the sales agreement in this case. Complainant has therefore been damaged in the amount of $1,500.00. 5. 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 $1,500.00.

It is further ordered that on the effective date of the final order in this matter that Respondent’s license, No. 7622, Class D-8, shall be suspended until such time as Respondent has repaid to the fund in full the amount of $1,500.00 plus interest at the rate of ten percent per year. / / /

Done this day, April 5, 2002.

______________________________________ Gregory L. Hanchett Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, 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