ALJDEC decisions subject to certification as final

08F-DI-210-REL-res · Department of Real Estate · 2009-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 20, 2009 APPEARANCES: No one appeared for Amari Katalina Soltero; Assistant Attorney General Kelly LaPrade appeared for the Department of Real Estate ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The Arizona Department of Real Estate alleges that Respondent violated A.R.S. § 32-2153 and requests that her license be revoked and a civil penalty be imposed. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT On March 13, 2009, the Arizona Department of Real Estate issued a Notice of Hearing and Complaint setting the above-captioned matter for 1:30 p.m. April 20, 2009. Respondent Amari Katalina Soltero did not appear at the scheduled time and after a 15-minute grace period the Administrative Law Judge (“ALJ”) convened the hearing in her absence. The Department presented the testimony of Ms. Carla Randolph, the Department’s compliance manager, and Ms. Robin King, a senior investigator and manager of the Department’s licensing investigations division. Ms. Soltero was formerly known as Irene Quero, but is referred to as Ms. Soltero throughout this Decision.

The Department attempted to notify Ms. Soltero of the instant hearing by sending a copy of the Notice of Hearing to her address of record by both certified and regular mail. The Department also sent copies of the Notice of Hearing by certified and regular mail to five other addresses it had for Ms. Soltero. Ms. Soltero holds License No. SA571103000 issued by the Department on January 9, 2006. Ms. Soltero’s license was summarily suspended on February 21, 2008. See Exhibit L. The Department alleges that Ms. Soltero violated A.R.S. §§ 32-2153(A)(1), (A)(3), (A)(18), (A)(22), (B)(3), (B)(5), (B)(6), (B)(7), (B)(8), and (B)(11). See Notice of Hearing. Complaint from Transnational Financial Network, Inc. On February 16, 2006, Ms. Soltero entered a Purchase Contract to buy a home at 2161 West Frostwood Lane in Tucson, Arizona. In loan-application documents for that purchase, Ms. Soltero represented that she had been employed by CDOIR Marketing for 3 years and 8 months and that she earned $8,400.00 per month. See Exhibits B through B8. The Department received a Complaint from Transnational Financial Network, Inc. (“TFN”) the mortgage bank that funded the loan on the Frostwood Property. TFN alleged that Ms. Soltero had made false statements in her loan application. With its Complaint, TFN submitted copies of documents from the Internal Revenue Service (“IRS”) showing that Ms. Soltero did not work for CDIOR during the years listed in her loan application. TFN also provided documents showing that Ms. Soltero was not earning $8,400.00 per month. See Exhibits B through B8. In response to the Department’s request for information about the TFN Complaint, Ms. Soltero asserted that someone must have altered her loan application. In support of her contention, she submitted a copy of that loan application showing that she had been employed by CDIOR for only 1 year. See Exhibits D through D2. Ms. King testified that based on her review of the TFN Complaint and supporting documentation Ms. Soltero’s assertion was not plausible because the information provided by Ms. Soltero still showed the false income and no one but Ms. Soltero would stand to gain by falsifying the loan application. Complaint from Realty Executives In a letter dated June 4, 2007, Mr. Jim Hadeed of Realty Executives reported to the Department that he had received a contract in which he suspected that there might be fraud. Exhibit F1 is a Purchase Contract for a property on Glenmere Drive in Chandler, in which Ms. Soltero represented the buyer Ms. Sandra Bryson. That Purchase Contract (F1) has an addendum showing that the seller had agreed to pay D.B. Steelgrave $25,000.00 at the close of escrow. Exhibit G1 is the copy of the Purchase Contract for the Glenmere Drive property that Ms. Soltero submitted to her broker Tammi Alban. Exhibit G1 has no addendum, but the information with respect to the $25,000.00 payment to D.B. Steelgrave is included in Section 8 of the Purchase Contract. In a letter dated August 20, 2007, Ms. Alban informed the Department that she had learned that Ms. Soltero had submitted a contract to an appraiser that differed from the contract that she had submitted to Ms. Alban. See Exhibit J. The contract was for a home on Sweet Birch Lane in Tucson. The contract submitted to the appraiser shows in Section 8 that D.B. Steelgrave was to receive $25,000.00 at the close of escrow (Exhibit J4), whereas the contract submitted to Ms. Alban does not include that information (Exhibit J5). When Ms. Alban alerted the loan officer and escrow agent that there was a problem with the contract for Sweet Birch Lane, they discovered a similar problem with respect to a property on Spruce Drive in Chandler. See Exhibit J. Exhibit J2 is a copy of the contract for Spruce Drive that was submitted to Ms. Alban and Exhibit J3 is a copy of the contract for Spruce Drive that was submitted to the loan officer. Exhibit J2 discloses a $22,000.00 payment to be made to D.B. Steelgrave at the close of escrow, whereas Exhibit J3 does not show that disclosure. In a letter to Ms. King dated June 19, 2007, Ms. Soltero wrote that D.B. Steelgrave was a property management company. Ms. King checked the Department’s records but D.B. Steelgrave is not licensed, which is a requirement for property management companies. Ms. King checked the Arizona Corporation Commission records and found no listing for D.B. Steelgrave. Ms. King also conducted an internet search, but found no information or telephone number for D.B. Steelgrave. Ms. Alban severed her relationship with Ms. Soltero effective August 20, 2007. See Exhibit J. On August 22, 2007, Ms. Soltero telephoned Mr. Bob Royer of Smith Realty, to discuss what was required to close escrow on the Spruce Drive property. See Exhibit K. The Department requested that Ms. Soltero’s license be revoked and that she be assessed a $5,000.00 civil penalty. CONCLUSIONS OF LAW The Department bears the burden of persuasion. See A.R.S. § 41- 1092.07(G)(2). The standard of proof on all issues in this matter that of a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “[e]vidence 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). The Department mailed the Notice of Hearing and Complaint to Ms. Soltero at her address of record and to five other addresses it had for Ms. Soltero. Consequently, Ms. Soltero was provided with proper notice of the hearing time and date. See A.R.S. § 41-1092.04. The preponderance of the evidence shows that Ms. Soltero pursued a course of misrepresentation as a principal in a transaction by submitting false information with her Purchase Contract to buy the home at 2161 West Frostwood Lane, which is a violation of A.R.S. § 32-2153(A)(1). The preponderance of the evidence shows that Ms. Soltero violated the provisions of A.R.S. Title 32, Chapter 20, which is a violation of A.R.S. § 32-2153(A)(3). The preponderance of the evidence shows that Ms. Soltero submitted to her broker copies of three contracts that were not a complete record of the underlying transactions, each of which is a violation of A.R.S. § 32- 2153(A)(18). Because Ms. Soltero also prepared alternate versions of these three contracts, her conduct also constitutes making substantial misrepresentations and dishonest dealings, which are violations of A.R.S. §§ 32-2153(B)(3) and (B)(5). The preponderance of the evidence shows that Ms. Soltero engaged in the business of a real estate at a time when she was not properly affiliated with a broker, which is a violation of A.R.S. § 32-2153(B)(6). The preponderance of the evidence shows that Ms. Soltero is not a person of honesty, truthfulness and good character, which is a violation of A.R.S. § 32-2153(B)(7). The preponderance of the evidence shows that Ms. Soltero demonstrated incompetence to perform the duties of a licensee, by a failure to appreciate the probable consequences of preparing two versions of purchase contracts, which is a violation of A.R.S. § 32-2153(B)(8). The preponderance of the evidence shows that Ms. Soltero failed to respond to the Department’s subpoena request and its request for more information, which is a violation of A.R.S. § 32-2153(B)(11). There is insufficient evidence to show that Ms. Soltero demonstrated negligence in performing any act for which a license is required, because the evidence shows that it is more likely than not that Ms. Soltero’s actions were deliberate, not negligent. See A.R.S. § 32-2153(A)(22). Because Ms. Soltero has violated A.R.S. § 32-2153(A) and (B), the Commissioner has authority to revoke her license and Ms. Soltero is subject to a civil penalty of up to $1,000.00 per violation. See A.R.S. § 32- 2160.01. Ms. Soltero’s violations, which include misrepresentations and dishonest dealings, are egregious. Consequently, revocation of Ms. Soltero’s license and a civil penalty of $5,000.00 are appropriate. ORDER IT IS ORDERED that on the effective date of the final order entered in this matter, Ms. Soltero’s License No. SA571103000 is revoked; IT IS FURTHER ORDERED that Ms. Soltero is ordered to pay a civil penalty of $5,000.00 within 10 days of the effective date of the final order issued in this matter.

Done this day, May 5, 2009

______________________________________ Thomas Shedden Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Jerome Jordan, Acting Commissioner Arizona Department of Real Estate 2910 North 44th Street, Room 100 Phoenix, AZ 85018

By ___________________________ -----------------------

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