OAH  8-1005-20969-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE DEPARTMENT OF COMMERCE

 

In the Matter of William Thomas Ficka, also known as Ficka & Associates and USACreditRecovery.com   

FINDINGS OF FACT,

CONCLUSIONS AND RECOMMENDATION

This matter came on for a Pre-Hearing Conference before Administrative Law Judge Eric L. Lipman on January 7, 2010, at the Saint Paul offices of the Office of Administrative Hearings.

Michael J. Tostengard, Assistant Attorney General, appeared on behalf of the Minnesota Department of Commerce (Department).  There was no appearance by, or on behalf of, William Thomas Ficka, doing business as Ficka and Associates or USACreditRecovery.com (Respondent).  Following the receipt of a post-hearing submission from the Department on January 14, 2010, the hearing record closed.

STATEMENT OF THE ISSUES

1.               Whether the Respondent engaged in unlicensed activity in violation of Minn. Stat. § 332.33 (2008)?

2.               Whether the Respondent’s collection practices violated the Fair Debt Collection Practices Act and Minn. Stat. § 332.37(12) (2008)?

3.                Whether the Respondent failed to respond to the Department’s investigation in violation of Minn. Stat. § 45.027, subd. 1a (2008)?

Based upon the evidence in the hearing record, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1.               On December 2, 2009, a Notice of and Order for Hearing, Order for Prehearing Conference, and Statement of Charges (Notice of and Order for Hearing) in this matter was mailed to the Respondent’s business address in Orlando, Florida.[1]  The Notice of and Order for Hearing indicated that a Prehearing Conference would be held in this matter on January 7, 2010.[2]

2.               The Notice and Order for Hearing in this matter includes the following statements:

          Respondent’s failure to appear at the prehearing conference may result in a finding that Respondent is in default, that the Department’s allegations contained in the Statement of Charges may be accepted as true, and that its proposed disciplinary action may be upheld.

….

          Pursuant to Minn. Stat. § 45.027, subd. 6 (2008), Respondents may be subject to a civil penalty not to exceed $10,000 per violation upon a final determination that Respondents violated any law, rule or order.[3]

3.               No one appeared at the January 7, 2010 conference on behalf of William Thomas Ficka, Ficka & Associates or USACreditRecovery.com.  No prehearing request was made for a continuance, nor was any communication received by the undersigned from William Thomas Ficka, Ficka & Associates or USACreditRecovery.com.

4.               The Statement of Charges alleges that:

(a)            Respondent is not licensed in any capacity by the Department.

(b)            The Department has received two complaints about the Respondent’s collection activities in the State of Minnesota.

(c)            The Department’s investigation revealed that in October 2007, the Respondent tried to collect debts from a Minnesota firm called Sun Rich Farm, Inc.  The Respondent did so by sending numerous dunning letters to this company.  The Department sent correspondence dated January 4, 2008, requiring a response to this complaint.  No response was received.

(d)            A second complaint was received in May 2009 from a Minnesota contracting business called New Life Contracting, Inc.  Respondent also had attempted to collect debts from this company in 2009.  In its collection activities, the Respondent repeatedly threatened litigation it did not have the power to initiate. 

5.               The allegations contained in the Statement of Charges are deemed proven and are incorporated into these Findings by reference.

Based upon these Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1.               The Administrative Law Judge and the Commissioner of Commerce have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50, 45.027, 332.40 and 332.41.

2.               Respondents received notice of the charges against him and of the time and place of the evidentiary hearing.  This matter is, therefore, properly before the Commissioner and the Administrative Law Judge.

3.               Respondents are in default as a result of their failure, without the Administrative Law Judge’s prior consent, to appear at the scheduled Pre-Hearing Conference.

4.               Pursuant to Minn. R. 1400.6000, a contested case may be decided adversely to a party who defaults.  Upon default, the allegations and claims set forth in the Statement of Charges may be taken as true or deemed proved without further evidence.

5.               Based upon the facts set forth in the statement of charges, Respondent engaged in unlicensed activity in violation of Minn. Stat. § 332.33 (2008).

6.               Based upon the facts set forth in the statement of charges, Respondent’s collection practices violated the Fair Debt Collection Practices Act and Minn. Stat. § 332.37(12) (2008).

7.               Based upon the facts set forth in the statement of charges, Respondent failed to respond to the Department’s investigation in violation of Minn. Stat. § 45.027, subd. 1a (2008).

8.               Minn. Stat. §§ 45.027 and 332.40 empowers the Commissioner to take disciplinary action against the Respondents, for their violations of agency orders, state statute and state rules.

9.               The imposition of a disciplinary action against Respondents is in the public interest.

          Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:

RECOMMENDATION

          The Administrative Law Judge recommends that disciplinary action be taken against William Thomas Ficka, doing business as Ficka and Associates or USACreditRecovery.com.

 

Dated:  January 25, 2010

 

                                                            _/s/ Eric L. Lipman_________________

ERIC L. LIPMAN

Administrative Law Judge

 

Reported:     Digital Recording

                    No transcript prepared

 

 

 

 

NOTICE

This report is a recommendation, not a final decision.  The Commissioner of the Minnesota Department 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 Glenn Wilson, Commissioner, Department of Commerce, 85 Seventh Place East, Suite 500, St. Paul, MN 55101 to learn about the procedure for filing exceptions or presenting argument.

 

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.  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.

  

 


[1]  See, Affidavit of Jean-Anne Gates (December 2, 2009).

[2]  Notice and Order for Hearing, at 1.

[3]  Notice and Order for Hearing, at 3, ¶ 1 and 5, ¶ 10.