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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-015

FCHR Order No. 09-015

Date of Release: 02/17/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

YOLANDA CLARK

HUD Case No. 04-08-0320-8

Petitioner

 

v.

FCHR Case No. 27-92362H

   

HOMEQ SERVICING CORP.

DOAH Case No. 08-2669

Respondent

FCHR Order No. 09-015

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

Preliminary Matters

Petitioner Yolanda Clark filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2007), alleging that Respondent Homeq Servicing Corp. committed a discriminatory housing practice in the servicing of her mortgage loan. The complaint of discrimination identifies the alleged bases of discrimination as being race (Black) and religion (nondenominational).

The allegations set forth in the complaint were investigated, and, on April 18, 2008, the Executive Director issued a determination finding that there was no reasonable cause to believe that a discriminatory housing practice had occurred.

Petitioner filed a Petition for Relief from a Discriminatory Housing Practice and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held in Starke, Florida, on October 1, 2008, before Administrative Law Judge T. Kent Wetherell, II.

Judge Wetherell issued a Recommended Order of dismissal, dated November 25, 2008.

Pursuant to notice, public deliberations were held on February 12, 2009, by means of Communications Media Technology (namely, telephone) before this panel of Commissioners. The public access point for these telephonic deliberations was the Office of the Florida Commission on Human Relations, 2009 Apalachee Parkway, Suite 200, Tallahassee, Florida, 32301. At these deliberations, the Commission panel determined the action to be taken on the Recommended Order.

Findings of Fact

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence.

FCHR Order No. 09-015

Page 2

We adopt the Administrative Law Judge’s findings of fact.

Conclusions of Law

We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter.

The Fair Housing Act states, “It is unlawful for any bank, building and loan association, insurance company, or other corporation, association, firm, or enterprise the business of which consists in whole or in part of the making of commercial real estate loans to deny a loan or other financial assistance to a person applying for the loan for the purpose of purchasing, constructing, improving, repairing, or maintaining a dwelling, or to discriminate against him or her in the fixing of the amount, interest rate, duration, or other term or condition of such loan or other financial assistance, because of the race, color, national origin, sex, handicap, familial status, or religion of such person or of any person associated with him or her in connection with such loan or other financial assistance or the purposes of such loan or other financial assistance, or because of the race, color, national origin, sex, handicap, familial status or religion of the present or prospective owners, lessees, tenants, or occupants of the dwelling or dwellings in relation to which such loan or other financial assistance is to be made or given.” Section 760.25(1), Florida Statutes (2007).

In addition, the Fair Housing Act states, “It is unlawful for any person or entity whose business includes engaging in residential real estate transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, national origin, sex, handicap, familial status, or religion.” Section 760.25(2)(a), Florida Statutes (2007). The Fair Housing Act continues, “As used in this subsection, the term ‘residential real estate transaction’ means any of the following: 1. The making or purchasing of loans or providing other financial assistance: a. For purchasing, constructing, improving, repairing, or maintaining a dwelling; or b. Secured by residential real estate. 2. The selling, brokering, or appraising of residential real property.” Section 760.25(2)(b), Florida Statutes (2007).

Applying the statutory sections set out above, the Administrative Law Judge concluded that “the servicing of a mortgage loan is not the type of transaction covered by Section 760.25, Florida Statutes.” Recommended Order, ¶ 49.

However, the Administrative Law Judge specifically found, “Respondent does not offer financing or make loans, but it provides assistance to borrowers through loan modifications, repayment plans, and forbearance agreements for existing loans (i.e., loans made by other companies), subject to guidelines established by the loan holder.” Recommended Order, ¶ 3.

We conclude that it is unnecessary to adopt the conclusion of law set out in Recommended Order, ¶ 49, since it is not dispositive of the matter, given the Administrative Law Judge’s findings on the merits, ultimately that no discriminatory housing practice occurred. See, generally, Roche v. J.C. Penney Company, Inc., FCHR

FCHR Order No. 09-015

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Order No. 06-078 (September 18, 2006), in which a Commission panel found it unnecessary to either accept or reject conclusions of law suggesting that the complaint of discrimination was not timely filed, when the Administrative Law Judge decided the case on other grounds, as well; see, also, generally, Cox v. University of Florida, FCHR Order No. 04-145 (November 4, 2004), in which a Commission panel declined to either accept or reject a conclusion of law which was not dispositive of the case given the decision on the merits, namely, that the Petition for Relief was not timely filed.

Further, noting that the Administrative Law Judge does not define the term “servicing of a mortgage loan,” in our view, it is unclear that the activities engaged in by Respondent as set out in Recommended Order, ¶ 3, are not covered by the Fair Housing Act, but given the finding on the merits, it is not necessary to make that determination at this time.

The Administrative Law Judge concluded that the Petition for Relief was not timely filed. Recommended Order, ¶ 52.

We reject this conclusion of law.

This issue was the subject of an earlier order issued in this case by the Commission in which the Commission specifically overturned the earlier decision of the Administrative Law Judge that the Petition for Relief was not timely filed. See FCHR Order No. 08-050 (July 29, 2008) which is part of the record of this case.

For reasons set out in FCHR Order No. 08-050, we conclude that the Petition for Relief was timely filed.

With these comments, we adopt the Administrative Law Judge’s conclusions of law, except, as indicated above, those found at Recommended Order, ¶ 49 and ¶ 52.

Exceptions

Petitioner filed exceptions to the Recommended Order in a document entitled, “Summary of Evidence Presented at Hearing October 1, 2009 [sic],” received by the Commission on December 26, 2008, in accordance with an earlier-issued order granting Petitioner an extension of time to file exceptions.

With regard to exceptions to Recommended Orders, the Administrative Procedure Act states, “The final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.” Section 120.57(1)(k), Florida Statutes (2007); see, also, Bartolone v. Best Western Hotels, FCHR Order No. 07-045 (August 24, 2007).

A review of Petitioner’s exceptions document suggests that it does not comply with this statutory provision.

FCHR Order No. 09-015

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Nevertheless, it can be said that the document generally excepts to the Administrative Law Judge’s ultimate finding that no discriminatory housing practice occurred in this matter.

The Commission has stated, “It is well settled that it is the Administrative Law Judge’s function ‘to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge’s role to decide between them.’ Beckton v. Department of Children and Family Services, 21 F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.A.L.R. 2168, at 2171 (FCHR 1986).” Barr v. Columbia Ocala Regional Medical

Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005).

Petitioner’s exceptions are rejected.

Dismissal

The Petition for Relief and Housing Discrimination Complaint are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 17th day of February , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Onelia A. Fajardo; and

Commissioner Watson Haynes, II

Filed this 17th day of February , 2009,

in Tallahassee, Florida.

FCHR Order No. 09-015

Page 5

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Yolanda Clark

Post Office Box 211

Lawtey, FL 32058

Homeq Servicing Corp.

c/o Celia C. Falzone, Esq.

Akerman Senterfitt

50 North Laura Street

Jacksonville, FL 32202

T. Kent Wetherell, II, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 17th day of February , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations