I sent a copy of this post to the Division of Banks using a link in this story. As noted last Friday, Miracle Mortgage, by and through Catherine Gibbons issued a request for public documents to the Division of Banks approximately 7 weeks ago. With respect to a hearing that the Division is trying to hold on or before January 11, 2010, the Superior Court stated on Friday: "It would seem to me that production [of the documents] should occur no later than next week."
But when I appeared at today's hearing at the Division of Banks South Station headquarters there were no documents for her but the Division and its attorneys steadfastly held to their position that Ms. Gibbons -- who had a "1" rating before she was punished for doing Stated Income Deals -- should lose her Broker's License forever. The Hearing Officer this morning told Ms. Gibbons
"You've lost your livelihood for 9 months and I don't take that lightly."
Wait until he sees the file, what with them falsely accusing her of being a convicted felon and such.
I read Ms. Gibbons' document requests and they included, inter alia, a request for her own file, and for the Division's policies and procedures. Why these documents have not been produced at this time is beyond me. Last Friday their counsel stated that they did have many of the documents ready to be produced, yet again today there were indeed no documents produced. Be that as it may, the Hearing Officer today ORDERED the Division to provide him a list of the documents that it agrees are public so that Ms. Gibbons may issue her supplemental Answer within the next two (2) weeks. Ms. Gibbons informed me that The Division's Dennis Otis told her that they do allow Stated Deals. The Division of Banks actually had guidelines on how to structure Stated Income Deals, so she obviously wants to know how and why her Stated Income Deals were considered "Fraudulent."
The word is "arbitrary and capricious."
ReplyDeleteBut perhaps not so arbitrary at all.
Wait for the documents and the statistical data.
Cadle Co. v. Mass. Div. of Banks, 21 Mass. L. Rep. 689 (2006)
"A decision is arbitrary and capricious when it lacks any rational explanation that reasonable persons might deem proper to support it. Arbitrary and capricious action is that taken without consideration and in disregard of facts and circumstances.
In addition, if an agency has acted for reasons that are extraneous to the statutory scheme based on some ad hoc agenda, it has acted arbitrarily because the basis for action is not uniform and is not predictable."
Here is some interesting related case law:
ReplyDeleteBrooks v. AIG Sunamerica Life Assur. Co. (2007) 480 F3d 579, 2007 US App LEXIS 6800.
Massachusetts Division of Insurance filings were accessible to appellant trustees pursuant to Massachusetts "public records" law, ALM GL c 66, § 10. Had the trustees exercised due diligence, they would have had no problem satisfying the district court's repeated orders to specify what "procedures and standards" on file with the Division of Insurance appellee insurer had allegedly violated.
Also,
Cunningham v. Health Officer of Chelsea (1979) 7 Mass App 861, 385 NE2d 1011, 1979 Mass App LEXIS 1248.
Health officer of city of Chelsea required to give access to public records consisting of complaints and information relating to housing code violations found within previous 2 years to exist on 30 properties.
And
Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co. (1993) 414 Mass 609, 609 NE2d 460, 1993 Mass LEXIS 125.
Statutory exemptions to public records act are strictly construed, and custodian of document has burden of proving that requested document is not within purview of public record.
We know you are watching guys:
ReplyDeletechelsea-ce.itd.state.ma.us
170.63.96.108 [Label IP Address]
You just wait for Ms. Gibbons to reply to MCAD when she notes that you failed to provide that letter to them where Division of Banks Directors accused her of being a convicted felon.
DOB built a House of Cards.
It will soon tumble, you really should settle with Ms. Gibbons but you have decided to fight, suit yourselves.
*******
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