Dampier v. Department of Banking & Finance, Division of Finance

593 So. 2d 1101, 1992 Fla. App. LEXIS 672, 1992 WL 15886
CourtDistrict Court of Appeal of Florida
DecidedJanuary 31, 1992
DocketNo. 90-3735
StatusPublished
Cited by1 cases

This text of 593 So. 2d 1101 (Dampier v. Department of Banking & Finance, Division of Finance) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dampier v. Department of Banking & Finance, Division of Finance, 593 So. 2d 1101, 1992 Fla. App. LEXIS 672, 1992 WL 15886 (Fla. Ct. App. 1992).

Opinions

WEBSTER, Judge.

Ebba Dampier (Dampier) appeals, and Raymond Beaty and others1 (the Beaty group) cross appeal, a Final Order of the Department of Banking and Finance (Department) determining eligibility for, and the amount of, recovery from the Mortgage Brokerage Guaranty Fund (the Fund). We affirm in part, and remand for further proceedings.

The Fund was established as of September 1,1977. Ch. 77-397, § 10, Laws of Fla. Upon approval by the Division of Finance (Division), payments are to be made from the Fund, pursuant to the provisions of Section 494.044, Florida Statutes, “to any party to a mortgage financing transaction who is adjudged by a Florida court of competent jurisdiction to have suffered monetary damages as a result of any violation of [Chapter 494] committed by a licensee or registrant.” § 494.042(2), Fla.Stat. (1989).

To the extent relevant to discussion of the issues presented by this appeal, Section 494.044, Florida Statutes (1989), reads as follows:

(1) Any person who meets all of the conditions prescribed in s. 494.043 may apply to the [Department for payment to be made to such person from the ... Fund in the amount equal to the unsatisfied portion of that person’s judgment or judgments or $20,000, whichever is less, but only to the extent and amount reflected in the judgment as being actual or compensatory damages. As to claims against any one licensee or registrant, payments shall be made to all persons meeting the requirements of s. 494.043 upon the expiration of 2 years from the date the first complete and valid notice is received by the [Department. Persons who give notice after 2 years from the date the first complete and valid notice is received and who otherwise comply with the conditions precedent to recovery may recover from any remaining portion of the $100,000 aggregate, in an amount equal to the unsatisfied portion of that person’s judgment or $20,000, whichever is less, but only to the extent and amount reflected in the judgment as being actual or compensatory damages, with claims being paid in the order notice is received until the $100,000 aggregate has been fully disbursed.
(2) The claimant shall assign his right, title, and interest in the judgment, to the extent of his recovery from the [F]und, to the [Department and shall record, at his own expense, the assignment of judgment in every county where the judgment is recorded.
(3) Payments for claims shall be limited in the aggregate to $100,000, regardless of the number of claimants involved, against any one mortgage broker or registrant. If the total claims exceed the aggregate limit of $100,000, the [Department shall prorate the payment based on [1103]*1103the ratio that the person’s claim bears to the total claims filed.
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To the extent relevant to discussion of the issues presented by this appeal, Section 494.043, Florida Statutes (1989), reads as follows:

(1) Any person who was a party to a mortgage financing transaction shall be eligible to seek recovery from the ... Fund if:
(a) The person has recorded a final judgment issued by a Florida court of competent jurisdiction in any action wherein the cause of action was based on s. 494.042(2);
(b) The person has caused to be issued a writ of execution upon such judgment and the officer executing the same has made a return showing that no personal or real property of the judgment debtor liable to be levied upon in satisfaction of the judgment can be found or that the amount realized on the sale of the judgment debtor’s property pursuant to such execution was insufficient to satisfy the judgment;
(c) The person has made all reasonable searches and inquiries to ascertain whether the judgment debtor possesses real or personal property or other assets subject to being sold or applied in satisfaction of the judgment, and by his search he has discovered no property or assets or he has discovered property and assets and has taken all necessary action and proceedings for the application thereof to the judgment, but the amount thereby realized was insufficient to satisfy the judgment;
(d) The person has applied any amounts recovered from the judgment debtor, or from any other source, to the damages awarded by the court;
(e) The person, at the time the action was instituted, gave notice and provided a copy of the complaint to the [Division by certified mail ...; and
(f) The act for which recovery is sought occurred on or after September 1, 1977....
(2) The requirements of paragraphs (l)(a), (b), (c), (d), and (e) are not applicable if the licensee or registrant upon which the claim is sought has filed for bankruptcy or has been adjudicated bankrupt; however, in such event the claimant shall file a proof of claim in the bankruptcy proceedings and shall notify the [Department by certified mail of the claim by enclosing a copy of the proof of claim and all supporting documents.

On or about April 9, 1987, the Division received a letter from Dampier’s counsel, which letter read, “Pursuant to the provisions of Section 494.042 [sic ], Florida Statutes, I am enclosing a copy of the complaint of Ebba Dampier against Byron D. Beeler, a licensed mortgage broker.” The copy of the complaint referred to reflected that the original had been filed in the circuit court for Okaloosa County. (However, there was nothing to indicate when it had been filed.) The complaint alleged that Beeler “[held] himself out as a licensed mortgage broker and investment counsel-lor,” and that his office was in Okaloosa County. According to the complaint, Beeler had made certain “intentional or negligent misrepresentation^]” to Dampier to induce Dampier to make, or to participate in making, mortgage loans to third parties; Dampier made, or participated in making, the loans in reasonable reliance upon Beeler’s misrepresentations; and, as a result of Beeler’s misrepresentations, Dampier suffered damage.

On August 13, 1987, Beeler filed a Chapter 11 bankruptcy proceeding in the United States Bankruptcy Court for the Northern District of Florida, Pensacola Division. (On Beeler’s motion, his bankruptcy proceeding was converted to a Chapter 7 case on July 20, 1988.) On January 14, 1988, Dampier’s counsel obtained an order from the bankruptcy court lifting the automatic stay, and allowing the action pending in the Okaloosa County circuit court to proceed. Dampier obtained a default final judgment against Beeler in the Okaloosa County action on September 29, 1988. The judgment awarded $37,403.19 in damages. On, or shortly after, October 18,1988, the Division received a letter from Dampier’s counsel, [1104]*1104together with copies of the bankruptcy-court’s orders lifting the automatic stay and converting Beeler’s case to a Chapter 7, and the Okaloosa County circuit court’s final judgment (which had been recorded).

As the result of a telephone conversation on or about August 7, 1989, with an attorney employed by the Office of the Comptroller, on August 15, 1989, Dampier’s counsel caused to be issued a writ of execution for the Okaloosa County final judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
593 So. 2d 1101, 1992 Fla. App. LEXIS 672, 1992 WL 15886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dampier-v-department-of-banking-finance-division-of-finance-fladistctapp-1992.