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OAH Docket No. 7-1005-19556-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF COMMERCE
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In the Matter of the Application of James L. Wasieleski for Prior Consent to Engage in Mortgage Origination Activities |
FINDINGS
OF FACT, CONCLUSIONS
AND RECOMMENDATION |
This matter came on for hearing before Administrative Law Judge Richard C. Luis on April 11, 2008. The hearing record closed at the conclusion of the hearing.
Michael J. Tostengard, Assistant Attorney General, appeared on behalf of the Minnesota Department of Commerce (Department).
The Respondent, James Wasieleski, appeared on his own behalf without counsel.
STATEMENT OF
ISSUE
Should Respondent’s application for prior consent to engage
in mortgage originator activities pursuant to Minn. Stat. § 58.125, subds. 2
and 4, be denied?
Based
on the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF
FACT
1.
Respondent is a 28-year-old man who attended high school in
the Twin Cities Metro area. He received
a high school diploma from
2.
On March 3, 1999, while still attending high school,
Respondent, age 18 at the time, was charged with First Degree Aggravated
Robbery (a felony) in connection with an incident in the parking lot of the
Express Deli and Billiards in Oakdale.[2] The Complaint alleged that Respondent and two
friends approached another vehicle parked in the Express Deli parking lot and
robbed the three individuals in that vehicle.
All the individuals involved were intoxicated.[3] During the robbery, Respondent threatened the
driver of the other car, ordered that person to surrender his money, and punched
that victim in the face at least once. According
to the Complaint, Respondent and his two friends robbed the victims of
approximately $1000 in cash, a cell phone, a jacket, and a lighter.[4]
3.
Later that night, Respondent and his friends were
apprehended by police and the stolen items were recovered. Both of Respondent’s friends were carrying
knives at the time of their arrest, and all three of the offenders had large
amounts of cash, totaling nearly $900.[5]
4.
On October 12, 1999, Respondent accepted a plea agreement
and pled guilty to the felony of aiding and abetting aggravated robbery.[6]
5.
On February 16, 2000, the Washington County District Court
sentenced Respondent to 44 months in prison and a $50 fine.[7] Respondent ultimately served 21 months at MCF
–
6.
On December 17, 2001, Respondent was transferred to Midwest
Challenge, a Christian work release program, for a period of eight months.[9] While there, he worked full-time and became a
member of a local
7.
From 2002-2003, Respondent attended
8.
Effective January 1, 2006,
9.
Respondent did not become aware of the new requirements of
Minn. Stat. § 58.125 until September 2007, while he was attending a Mortgage
Ethics class.[15] Respondent brought the statute to the
attention of his employer, who left it to Respondent to figure out if the
statute applied to him as a loan officer at Dearey Mortgage/City West Capital. Respondent quit his job at Dearey
Mortgage/City West Capital because he believed he was working in violation of
Minn. Stat. § 58.125.[16]
10.
Respondent immediately began to prepare his application for
prior consent to engage in mortgage origination activities. He also engaged in discussions with two other
mortgage companies about coming to work for them as a loan officer.[17]
11.
On September 24 and 27, 2007, respectively, Mortgage &
Investment Consultants, Inc. and Summit Mortgage Corporation submitted
applications on behalf of Respondent for prior written consent of the
Commissioner to engage in mortgage origination activities.[18] Both applications disclosed Respondent’s
aggravated robbery conviction and included a Sentencing Letter of Explanation,
in which Respondent discussed his conviction, the circumstances surrounding it,
and the attempts he had since made to rehabilitate himself. The applications also included a certificate
of successful completion of the Residential Recovery Program at Midwest
Challenge; Respondent’s conditions of release forms dated July 9, 2002, and
November 30, 2001; two letters, both dated August 20, 2001, from the Department
of Corrections involving Respondent’s participation in the Work Release
program; Respondent’s MCF-Moose Lake Annual Review dated March 30, 2001; Respondent’s
Felony Sentencing/Revocation Order dated February 17, 2000; and the Complaint
describing the aggravated robbery charge filed March 9, 1999.[19]
12.
The Department also requested and reviewed Respondent’s W-2
forms covering his employment at Dearey Mortgage/City West Capital.[20] On January 8, 2008, Respondent met with
Department employees Kevin Murphy and Robin Brown to discuss Respondent’s
employment history and the aggravated robbery complaint. There was no discussion about Respondent’s
character or his behavior since being incarcerated.[21]
13.
After reviewing the materials submitted by Respondent, the
Department determined that Respondent’s felony conviction for aiding and abetting
aggravated robbery sufficiently demonstrated that Respondent should not be
granted prior consent to engage in mortgage origination activities.[22] Shortly
after the January 8, 2008 meeting, Ms. Brown called Respondent with the
Department’s decision.[23]
14.
On March 14, 2008, the Department served Respondent by mail
with the Order Denying Prior Consent to Engage in Mortgage Origination
Activities, including a Statement of Charges and Order for Hearing.
15.
Respondent is currently enrolled
at
Based on the Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS
1.
The Administrative Law Judge and the Commissioner of
Commerce are authorized to consider the charges against Respondent under Minn.
Stat. §§ 14.50 and 58.125 (2006).
2.
The Department has complied with all relevant procedural
requirements.
3.
Minn. Stat. § 58.125, subd. 2, states:
Except with
the prior written consent of the commissioner under subdivision 4, an
individual, who has been convicted of a criminal offense involving dishonesty
or a breach of trust or money laundering, or has agreed to or entered into a
pretrial diversion or similar program in connection with a prosecution for such
offense, may not serve as a residential mortgage originator or be employed in
that capacity by a person licensed as a mortgage originator.[25]
4.
According to Minn. Stat. § 58.125, subd. 1, dishonesty includes “wrongfully
taking property belonging to another in violation of any criminal statute.”
5.
Respondent’s felony guilty plea to aiding and abetting
aggravated robbery establishes that Respondent engaged in dishonesty as defined
by Minn. Stat. § 58.125, subd. 1.
6.
Respondent was employed as a mortgage originator, without
prior consent of the Commissioner, in violation of Minn. Stat. § 58.125, subd.
2, from January 1, 2006, until September 2007.
7.
The factors to be considered by the Commissioner when reviewing
an application are: “(1) the specific
nature of the offense and the circumstances surrounding the offense; (2)
evidence of rehabilitation; (3) the age of the person at the time of
conviction; and (4) whether or not restitution has been made.”[26]
8.
Respondent’s crime involved the violent taking of a
significant amount of money, in which Respondent played a primary role. His crime relates to his employment as a loan
officer in that it involves handling the money of other people. While Respondent argues that he is a
completely changed person of good moral character and presented two of his
former co-workers as character witnesses, the level of dishonesty involved in
the felony he committed outweighs the evidence of rehabilitation presented in
support of granting consent to engage in mortgage origination activities.
9.
An Order denying prior consent to engage in mortgage origination
activities would be in the public interest, within the meaning of Minn. Stat. §
45.027, subd. 7 (a)(1).
Based on the Conclusions, the Administrative Law Judge makes the following:
IT
IS RECOMMENDED that the Commissioner of Commerce deny Respondent’s application
for prior consent to engage in mortgage origination activities.
Dated this 12th day of May, 2008.
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/s/ Richard C. Luis |
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RICHARD C. LUIS |
|
Administrative Law Judge |
Reported: Digitally recorded; no transcript.
This Report is a
recommendation, not a final decision.
The Commissioner of Commerce will make the final decision after
reviewing the record and may adopt, reject or modify these Findings of Fact,
Conclusions, and Recommendation. Under
Minn. Stat. § 14.61, the Commissioner’s decision shall not be made until this
Report has been available to the parties to the proceeding for at least ten
(10) days. An opportunity must be
afforded to each party adversely affected by this Report to file exceptions and
present argument to the Commissioner. Parties should contact
Kevin Murphy,
If the
Commissioner 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 (2006). The record
closes upon the filing of exceptions to the report and the presentation of
argument to the Commissioner, or upon the expiration of the deadline for doing
so. The Commissioner must notify the
parties and the Administrative Law Judge of the date on which the record
closes.
Under Minn. Stat. § 14.62, subd. 1, the agency is required
to serve its final decision upon each party and the Administrative Law Judge by
first class mail or as otherwise provided by law.
MEMORANDUM
Respondent contends that the incident resulting in
his felony conviction was a single mistake in the life of an otherwise bright
and well-mannered teenager. He asserts
that he became depressed and went through a difficult period in high school
after discovering his father dead of a heart attack.[27] Respondent claims he fell in with the wrong
crowd and made a terrible mistake when he participated in the robbery.
Residential
mortgage originators are responsible for handling large financial transactions
on behalf of the public, and the Department properly requires that applicants
demonstrate a history of honesty and integrity in dealing with the property of
others in order to work in this area.
Although the Respondent has done well since he pled guilty in 1999, his
criminal conviction is serious and involved a violent offense reflecting
dishonesty and the theft of money.
Respondent’s criminal offense relates directly to the occupation Mr.
Wasieleski seeks consent to pursue. Although
Respondent may have performed honestly and competently in that occupation for
several years, the Administrative Law Judge is not persuaded that the
withholding of consent now is improper, nor is it an abuse of the
Commissioner’s discretionary authority under the statute.[28]
R. C. L.
[1] Testimony of James Wasieleski (Respondent).
[2] Ex. 1 (Complaint).
[3] Ex. 1 (Sentencing Letter of Explanation, dated September 21, 2007).
[4] Ex. 1 (Complaint).
[5] Ex. 1 (Complaint).
[6] Ex. 1 (Letter from Thomas Drobac to the Anoka County Chief Public Defender, dated August 20, 2001).
[7] Ex. 1 (Felony Sentencing/Revocation Order, dated February 16, 2000).
[8] Ex. 1 (Sentencing Letter of Explanation, dated September 21, 2007).
[9] Ex. 1 (Conditions of Release, dated November 30, 2001).
[10] Ex. 1 (Sentencing Letter of Explanation, dated September 21, 2007).
[11] Ex. 1 (Conditions of Release, dated July 9, 2002).
[12] Ex. 1 (Sentencing Letter of Explanation, dated September 21, 2007).
[13] Ex. 5.
[14] Laws of Minnesota 2005, chapter 118, section 8.
[15] Ex. 5. Testimony of Respondent, Darren Lindquist, and Alicia Ford-Fant.
[16] Dearey Mortgage/City West Capital went out of business sometime in 2007. Ex. 5.
[17] Testimony of Respondent.
[18] Exs. 1, 2, and 3.
[19] Exs. 1 and 2.
[20] Ex. 4. Testimony of Robin Brown.
[21] Testimony of Robin Brown and Respondent.
[22] Testimony of Robin Brown.
[23] Ex. 5.
[24] Exs. 1 and 5. Testimony of Respondent.
[25]
[26]
[27] Exs. 1 and 5.
[28] It is noted that one of the grounds stated for denying consent initially, according to the Statement of Charges in the Order under appeal, was that Respondent had engaged in prior mortgage origination activities without the consent of the Commissioner. The record establishes clearly that Respondent and his supervisors were unaware of the law imposing a requirement for consent to engage in employment as a mortgage originator, and that Respondent, to his credit, ceased that employment upon learning of the requirement. As a result, the charge that Respondent engaged illegally in prior mortgage origination activity without the consent of the Commissioner has been discounted by the Administrative Law Judge in weighing the evidence.