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12-1005-15688-2 RE2307420/CC |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF COMMERCE
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In the Matter of the Mortgage Originator Activities of Nokomis Mortgage Corporation of Minnesota, License No. MO20225428 |
FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
This matter came on for a Prehearing Conference before Administrative Law Judge Steve M. Mihalchick at 1:30 p.m. on March 11, 2004, at the Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota. Michael J. Tostengard, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, Minnesota 55101-2127, appeared for the Department of Commerce. There was no appearance by Respondent, in person or by counsel. Respondent has not contacted the Administrative Law Judge to request a continuance of this matter.
This report is a recommendation, not a final decision. The Department of Commerce will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendation. Under Minn. Stat. § 14.61 (2002), the Board shall not make a final decision until this Report has been made available to the parties for at least ten days. The parties may file exceptions to this Report and the Department must consider the exceptions in making a final decision. Parties should contact the Department at the address above to learn the procedure for filing exceptions or presenting argument.
If the Department fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the report and the presentation of argument to the Department, or upon the expiration of the deadline for doing so. The Department must notify the parties and the Administrative Law Judge of the date on which the record closes.
Pursuant to Minn. Stat. § 14.62, subd. 1 (2002), the Board is required to serve its final decision upon each party and the Administrative Law Judge by first class mail.
STATEMENT OF ISSUES
1. Did Nokomis Mortgage demonstrate financial irresponsibility in violation of Minn. Stat. § 58.12, subd. 1(b)(2)(v) (2002), by failing to compensate appraisers for services performed at the request of Nokomis Mortgage?
2. Did Nokomis Mortgage violate Minn. Stat. § 45.027, subd. 1a (2002), by failing to respond to the request for information from the Department and by failing to appear at the Department as ordered?
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. On January 21, 2004, the Notice of and Order for Hearing, Notice of Prehearing Conference and Statement of Charges in this matter were served by first class mail upon Nokomis Mortgage Corporation of Minnesota, Brian Cottrill, Vice President, 5009 Excelsior Boulevard, #130, St. Louis Park, MN 55416, the last known address on file with the Department. It notified Respondent of the Prehearing Conference scheduled for March 11, 2004. The Notice was not returned to the Department.
2. On January 27, 2004, the Department served the Commissioner of Commerce, by certified mail, with a copy of the Notice of and Order for Hearing, Notice of Prehearing Conference and Statement of Charges.[1]
3. On January 28, 2004, the Department served Respondent Nokomis Mortgage with a copy of the Notice of and Order for Hearing, Notice of Prehearing Conference and Statement of Charges, this time by certified mail.
4. On March 11, 2004, Respondent failed to appear at the Prehearing Conference, or to notify the Department or the Administrative Law Judge that a representative of the corporation was unable to appear.
5. The Notice of and Order for Hearing, Order for Prehearing Conference and Statement of Charges informed Respondent that if it failed to appear at the Prehearing Conference, the allegations against the corporation, set forth in the Notice of and Order for Hearing, Order for Prehearing Conference and Statement of Charges, could be taken as true, and a default order could be issued. Respondent was informed that such an order could result in disciplinary action.
6. Because Respondent Nokomis Mortgage failed to appear, the corporation is in default.
7. Pursuant to Minn. Rules part 1400.6000, the allegations contained in the Notice of and Order for Hearing, Order for Prehearing Conference and Statement of Charges are taken as true and incorporated into these Findings of Fact.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Department and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50, 45.027, and 58.12.
2. The Department has given proper notice of the hearing in this matter and has fulfilled all relevant substantive and procedural requirements of law and rule.
3. Pursuant to Minn. Stat. § 58.12, subds. 1(a) and 1(b) (2002), the Commissioner may take disciplinary action against a corporation or individual if such action is in the public interest and at least one of eleven violations is established.
4. The facts set out in the Notice of and Order for Hearing show that Nokomis Mortgage did demonstrate financial irresponsibility in violation of Minn. Stat. § 58.12, subd. 1(b)(2)(v) (2002), by failing to compensate appraisers for services performed at the request of Nokomis Mortgage.
5. The facts set out in the Notice of and Order for Hearing show that Nokomis Mortgage refused to cooperate with an investigation or examination by the Commissioner, under Minn. Stat. § 45.027, subd. 1a (2002), in violation of Minn. Stat. § 58.12, subd. 1(b)(2)(ix) (2002).
6. Disciplinary action against Respondent is in the public interest.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED: that the Department take disciplinary action against Respondent.
Dated this 15th day of March, 2004.
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s/Steve M. Mihalchick |
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STEVE M. MIHALCHICK |
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Administrative Law Judge |
Reported: Default