ALJDEC decisions subject to certification as final

08F-BD022-BNK · Arizona Department of Financial Institutions · 2008-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 25, 2008 APPEARANCES: Craig Raby, Assistant Attorney General, appeared on behalf of the State. Not one appeared on behalf of the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ This matter came on for hearing as scheduled. The Respondent had been properly noticed but failed to appear. There is no good cause known for the non appearance. The Department of Financial Institutions (Department) presented testimony and documentary evidence which was not disputed. Based on undisputed evidence, the following findings are submitted. Findings of Fact 1. The Respondent, NV Mortgage, Inc. d.b.a. Soma Financial submitted its Mortgage Banker Application to the Department on November 15, 2005. 2. In conjunction with the application, the Respondent submitted a bond in the amount of $25,000.00 issued by Platte River Insurance Company (Platte) and an accompanying Power of Attorney. 3. The Department issued a license to the Respondent on May 22, 2006. 4. On February 28, 2007 the Respondent submitted a change of address application to the Department which issued the license reflecting the address change on June 20, 2007. 5. By Notice of Cancellation dated July 20, 2007, Platte canceled the Respondent’s bond (effective August 23, 2007). 6. Department attempts to contact the Respondent were unsuccessful. 7. The Department suspended the Respondent’s Mortgage Bankers’ License effective December 17, 2007. Conclusions of Law A.R.S. §6-943(H) requires every person licensed as a mortgage banker to deposit a bond[1] with the superintendent, before doing business. A.R.S. §6-945 allows for sanctions against a licensee if the licensee has violated any applicable law, rule or order. 1. The State has the burden of proof by a preponderance of the evidence under Culpepper v. State, 187 Ariz. 431 (1996 App.) and A.A.C. R2- 19-119. 2. 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). 3. The evidence in an administrative hearing must be “substantial, reliable, and probative” (A.R.S. §41-1092.07(F)(1)). This means the Department has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. 4. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 5. The evidence is undisputed and the facts are clear. The Respondent no longer has the bond required for doing business in the state. This establishes a violation of A.R.S. §6-943(H) and provides grounds for sanctions (including affirming the summary suspension, and revocation of the license) under 6-945. Recommended Order It is recommended commencing the effective date of the Order issued in this matter that Mortgage Banker License No. BK-0907883 issued to Soma Financial be revoked.

. Done this day, February 1, 2008

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Felecia Rotellini, Superintendent Arizona Department of Financial Institutions ATTN: Susan L. Ross 2910 North 44th Street, Suite 310 Phoenix, AZ 85018

By ___________________________

----------------------- [1] The minimum is $25,000.00

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