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Wilson v. Department of Financial & Professional Regulation

Court of Appeals of Illinois, First District

May 24, 2013

CHRIS WILSON, Plaintiff-Appellant,
v.
THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION, Division of Banking of Department of Financial and Professional Regulation, and MANUEL FLORES, Director of the Division of Banking of the Department of Financial and Professional Regulation, Defendants-Appellees.

Held: [*]

A 2009 amendment to the Residential Mortgage License Act providing that licenses “shall not” be issued to anyone convicted at any time of a felony involving fraud or dishonesty was properly applied to plaintiff in denying his 2010 license renewal application because of his 2006 federal tax fraud conviction, notwithstanding his contention that application of the amendment is an ex post facto law that violated his constitutional rights, took a property interest without just compensation and violated the res judicata doctrine, since the amendment is not a penalty, but, rather, its intention is to protect consumers from unethical mortgage practices, it does not violate the prohibition against ex post facto laws, no property interest was affected by the denial of plaintiff’s application, and res judicata did not apply because the orders involved responded to different issues.

Appeal from the Circuit Court of Cook County, No. 11-CH-19462; the Hon. Thomas R. Allen, Judge, presiding.

William C. Coughlin, of Law Offices of William C. Coughlin, P.C., of Worth, for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Clifford W. Berlow, Assistant Attorney General, of counsel), for appellees.

Justices Howse and Taylor concurred in the judgment and opinion.

OPINION

McBRIDE, PRESIDING JUSTICE

¶ 1 The issue in this appeal is whether a residential mortgage loan originator who was disciplined by the State of Illinois in 2007 for federal tax fraud convictions and then relicensed at the State's discretion in 2007, 2008, and 2009 became permanently disqualified from relicensing by a 2009 amendment to the Residential Mortgage License Act of 1987 (205 ILCS 635/7-3 (West 2010)) (Mortgage License Act) which indicates licenses "shall not" be issued to anyone convicted at any time of a felony involving fraud or dishonesty. Petitioner Christopher Mark Wilson contends the denial of his 2010 license renewal application by respondent Illinois Department of Financial and Professional Regulation (Department) due to his federal tax fraud convictions violates his state and federal constitutional rights because the 2009 law is being applied retroactively; is an ex post facto law; and has taken a property interest without just compensation. He also contends he is being punished a second time for the same conduct in violation of the doctrine of res judicata.

¶ 2 The relevant facts are straightforward and undisputed. Wilson, a resident of Lombard, Illinois, was first issued a residential mortgage loan originator license by the State of Illinois in 2005. The Mortgage License Act defines a "loan originator" as "any natural person who, for compensation or in the expectation of compensation, either directly or indirectly makes, offers to make, solicits, places, or negotiates a residential mortgage loan" and further specifies that no person "shall engage in the business of *** originating *** residential mortgage loans without first obtaining a license." 205 ILCS 635/1-4(hh) (West 2010) (statute defining terms used in Mortgage License Act); 205 ILCS 635/1-3(a) (West 2010) (statute stating scope of Mortgage License Act and necessity of license). Wilson renewed the license without incident for the year 2006–the same year in which he entered a guilty plea in the United States District Court for the Northern District of Illinois and was convicted of the federal felony crimes of tax fraud in 2001 and impeding the Internal Revenue Service. See 26 U.S.C. § 7206(1) (2000) (statute regarding fraud and false statements); 26 U.S.C. § 7212(a) (2000) (statute regarding obstruction of administration of internal revenue laws). Wilson was ordered to pay restitution for taxes owed and a $1, 500 fine and put on two years' probation. He indicates the tax arrearage was $43, 000, but the addition of interest and penalties increased his debt to $107, 000. He also indicates he fully complied with the sentence.

¶ 3 Wilson disclosed the federal convictions when he applied for license renewal in 2007. He and the Department then agreed to disciplinary consequences that were documented in a consent order. The consent order indicates the convictions were potential grounds for denying renewal, but Wilson's annual license would be renewed and then immediately suspended for 30 days and he would be subject to probation for 2 years. See 205 ILCS 635/7-1 (West 2006) (statute indicating loan originators must be registered and authorizing the creation of rules and regulations prescribing relevant qualifications, fees, examinations, education, supervision, enforcement, and other criteria); 38 Ill. Adm. Code 1050.2110(a)(6) (2005) (administrative rule indicating applicants must disclose any criminal conviction or adverse civil judgment involving monies, breach of trust, moral turpitude, or misfeasance or malfeasance). Wilson complied with the terms of probation and his license was renewed for the years 2008 and 2009.

¶ 4 Around this same time, however, federal and state laws were enacted to combat extensive fraud and predatory lending practices in the subprime residential mortgage market. A new federal law known as the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 or "SAFE Act" imposed background and education standards and required fingerprinting and issuance of unique, lifetime identifiers to prevent unscrupulous mortgage loan originators from simply moving from jurisdiction to jurisdiction. 12 U.S.C. §§ 5101-5116 (Supp. III 2010); Bryce Gray, The Secure and Fair Enforcement for Mortgage Licensing Act of 2008, 31 Rev. Banking & Fin. L. 51 (2011). Among the SAFE Act's "minimum standards for licensing and registration" for mortgage loan originators was that:

"[t]he applicant has not been convicted of, or pled guilty or nolo contendre to, a felony in a domestic, foreign, or military court:
(A) during the 7-year period preceding the date of the application for licensing and registration; or
(B) at any time preceding such date of application, if such felony involved an act of fraud, dishonesty, or a breach of trust, or money laundering." 12 ...

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