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OAH 4-1005-19583-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF COMMERCE
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In the Matter of the Insurance Licenses of
Terry Louis Lemke and All Metro, Title, Inc., the Real Estate Broker’s
License of Terry Louis Lemke, and the Mortgage Originators Licenses of
Metropolitan Lending, Inc. and Metropolitan Lending, LLC |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above-entitled matter came on for
hearing before Administrative Law Judge Bruce H. Johnson (the ALJ) on Tuesday, April
28, 2009, at 9:30 a.m. at the Office of Administrative Hearings,
Michael J. Tostengard, Assistant
Attorney General, appeared on behalf of the Minnesota Department of Commerce
(“Department”). The Respondent, Terry
Louis Lemke, did not appear in person or by counsel. The Respondents All Metro Title, Inc.
Metropolitan Lending, Inc., and Metropolitan Lending, LLC, were also not
represented.[1] The hearing record closed when the hearing
ended on April 28, 2009.
1.
Should the Summary Suspension issued in this matter
on March 31, 2008, be continued, pending final resolution of the Order to Show
Case of the same date; and
2.
Did the Respondents Terry Louis Lemke, All Metro Title,
Inc., and Metropolitan Lending, Inc.,[2]
demonstrate untrustworthiness in violation of Minn. Stat. § 45.027, subd.
7(a)(4)?[3]
3.
Did the Respondents Terry Louis Lemke and All Metro Title,
Inc., demonstrate untrustworthiness, use dishonest practices, or improperly
withhold, misappropriate, or convert money or properties or were they subjects
of an injunction by a court of competent jurisdiction in violation of Minn.
Stat. § 60K.43, subd. 1(4), (8), and (15)?
4.
Did the Respondents Terry Louis Lemke and All Metro Title,
Inc., engage in unfair and deceptive acts or practices in violation of Minn.
Stat. § 72A.20, subd. 18?
5.
Did Respondent Terry Louis Lemke engage in a fraudulent,
deceptive, or dishonest practice, demonstrate untrustworthiness, or comingle
property trust funds with his own in violation of Minn. Stat. §§ 82.35 and
82.41?
6.
Did Respondent Terry Louis Lemke fail to observe high
standards of commercial honor and just and equitable principles of trade in
violation of Minn. R. 2795.1000?
7.
If the Respondents committed one or more of the violations
set forth above, is it in the public interest for the Commissioner to enter an
order revoking all licenses issued by the Department to the Respondents and/or
assessing the Respondents with civil penalties?
Based upon all of the files, records and proceedings herein, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On April 1, 2008, a copy of the Notice of Hearing was
delivered via first class mail to Terry Louis Lemke and to All Metro Title, Inc.,
and Metropolitan Lending, Inc., at the addresses set forth in the Certificate
of Service attached hereto and as further appears from an Affidavit of Service
by First Class Mail on file herein. Those
addresses were the most recent addresses that the Respondents had provided to
the Department in connection with their current licensures.
2.
The undersigned Administrative Law Judge subsequently conducted
a hearing in this matter at 9:30 a.m. on January 14, 2009, at the Office of
Administrative Hearings,
3.
The parties were subsequently unable to consummate a
settlement, and by Order issued on March 10, 2009, the ALJ ordered the hearing
to resume at 9:30 a.m. on Tuesday, April 28, 2009, at the Office of
Administrative Hearings,
(2) That pursuant to Minn. R. 1400.6000, failure by the Respondents
to appear at the hearing shall be deemed a default, upon which the allegations
of or the issues set out in the notice of and order for hearing shall be taken
as true or deemed proved without further evidence.
4.
Additionally, the Notice of Hearing contained the following “Additional
Notice”:[4]
Respondents’
failure to appear at the contested case hearing and/or prehearing conference
may result in a finding that the Respondents are in default, that the
Department’s allegations contained in the Statement of Charges may be accepted
as true, and its proposed action may be upheld.
5.
The Respondents did not appear at April 28, 2009 hearing,
did not obtain the ALJ’s prior approval to be absent from that hearing, and did
not request a continuance or any other relief.
6.
Because Respondents failed to appear at the April 28, 2009
hearing, they are in default.
7.
Pursuant to Minn. R. 1400.6000, the allegations contained in
the Notice of Hearing and the Amended Statement of Charges are taken as true
and incorporated by reference into these Findings of Fact.
Based upon the
foregoing 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. §§ 45.027, subds. 6 and 7 and 14.50.
2.
Respondents received due, proper and timely notice of the
charges against them and of the time and place of the hearing, and the
Department has complied with all procedural requirements of law and rule. This matter is, therefore, properly before
the Commissioner and the Administrative Law Judge.
3.
Under Minn. R. 1400.6000, a contested case may be decided
adversely to a party who defaults. On
default, the allegations of and the issues set out in that Notice of and Order
for Hearing or other pleading may be taken as true or deemed proved without
further evidence.
4.
The Respondents are in default herein as a result of their
failure, without the ALJ’s prior consent, to appear at the April 28, 2009,
hearing.
5.
The Respondents Terry Louis Lemke, All Metro Title, Inc.,
and Metropolitan Lending, Inc., demonstrated untrustworthiness in violation of
Minn. Stat. § 45.027, subd. 7(a)(4).
6.
The Respondents Terry Louis Lemke and All Metro Title, Inc.,
demonstrated untrustworthiness, used dishonest practices, and improperly
withheld, misappropriated, or converted money or properties in violation of
Minn. Stat. § 60K.43, subd. 1(4) and (8). They were also
subjects of an injunction by a court of competent jurisdiction in violation of
Minn. Stat. § 60K.43, subd. 1 (15).
7.
The Respondents Terry Louis Lemke and All Metro Title, Inc.,
engaged in unfair and deceptive acts or practices in violation of Minn. Stat. §
72A.20, subd. 18.
8.
Respondent Terry Louis Lemke engaged in a fraudulent,
deceptive, or dishonest practice, demonstrated untrustworthiness, and comingle
property trust funds with his own in violation of Minn. Stat. §§ 82.35 and
82.41?
9.
Respondent Terry Louis Lemke failed to observe high
standards of commercial honor and just and equitable principles of trade in
violation of Minn. R. 2795.1000?
10.
Minn. Stat. §§ 45.027, subd. 7(a)(2), empowers the
Commissioner to suspend or revoke licenses issued to the Respondents by the
Department, if the Commissioner concludes that the Respondents have violated
Minn. Stat. §§ 45.027, subd. 7(a)(4); 60K.43, subd. 1; 72A.20, subd. 18; 82.35;
82.41; or
11.
Minn. Stat. § 45.027, subd. 6, empowers the Commissioner
also to impose a civil penalty upon the Respondent, in an amount not to exceed
$10,000 per violation, as a result of the Respondent’s violations of Minn.
Stat. §§ 332.33 and 332.37(8), (10), and (17).
12.
Disciplinary action against the Respondents is in the public
interest.
Based upon the foregoing Conclusions,
the Administrative Law Judge makes the following:
The Administrative Law
Judge respectfully RECOMMENDS that the Commissioner of the Minnesota Department
of Commerce take adverse action against Respondents’ licenses, censure
Respondents, and/or impose a civil penalty upon Respondents.
Dated: April 29, 2009
s/Bruce H. Johnson
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BRUCE H. JOHNSON Assistant Chief Administrative Law Judge |
Recorded digitally. No transcript
prepared.
NOTICES
This
report is a recommendation, not a final decision. The Commissioner of Commerce will make the
final decision after a review of the record.
The Commissioner may adopt, reject or modify the Findings of Fact,
Conclusions, and Recommendations. Under
Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made
until this Report has been made available to the parties to the proceeding for
at least ten 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 the office of Glenn Wilson, Commissioner,
Minnesota Department of Commerce,
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. In order to comply
with this statute, the Commissioner must then return the record to the
Administrative Law Judge within 10 working days to allow the Judge to determine
the negative licensing action, if any, to be imposed. 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.
Pursuant
to Minn. Stat. § 14.62, subd. 1 (2006), the Commissioner is required to serve
his final decision upon each party and the Administrative Law Judge by first
class mail.
[1] See Findings of Fact No. 6.
[2] Respondent Metropolitan Lending, LLC, was discharged as a party to this proceeding by a Consent Order dated April 15, 2008.
[3] Unless otherwise specified, all references to Minnesota Statutes are to the 2006 edition, and all references to Minnesota Rules are to the 2007 edition.
[4] Notice of Hearing at p. 6.