CalBRE Defense Law – What is a “Statement of Issues?”
We have talked in other blogs on this website about suspension or denial of real estate licenses due to fraud, deceit, misrepresentation, or material misstatements of fact. This is a serious issue. As a real estate licensee, if the CalBRE finds out you lied or failed to disclose criminal acts and yet obtained a real estate license, they can immediately SUSPEND your license WITHOUT first conducting a hearing on the issue. The same rule applies to DENYING a real estate license to a new applicant that just passed the real estate exam (salesperson or brokers). This will usually involve the non-disclosing party to receive a “Statement of Issues” to which they should respond by filing a notice of defense within 15 days, and substantive response (and potential request for settlement) within 30 days of being served. This blog discusses general tips on responding to the statement of issues and some general things you should know if you are involved in this situation.
California Business & Professions Code Section 10177.1
Under Cal. Bus. & Prof. Code § 10177.1 the California Bureau of Real Estate has the power and authority to suspend or deny a real estate license without first holding a hearing, but this involves the use of a “statement of issues.” Here is what this code section says:
The commissioner may, without a hearing, suspend the license of any person who procured the issuance of the license to himself by fraud, misrepresentation, deceit, or by the making of any material misstatement of fact in his application for such license. The power of the commissioner under this section to order a suspension of a license shall expire 90 days after the date of issuance of said license and the suspension itself shall remain in effect only until the effective date of a decision of the commissioner after a hearing conducted pursuant to Section 10100 and the provisions of this section.
A statement of issues as defined in Section 11504 of the Government Code (SEE BELOW) shall be filed and served upon the respondent with the order of suspension. Service by certified or registered mail directed to the respondent’s current address of record on file with the commissioner shall be effective service. The respondent shall have 30 days after service of the order of suspension and statement of issues in which to file with the commissioner a written request for hearing on the statement of issues filed against him.The commissioner shall hold a hearing within 30 days after receipt of the request therefor unless the respondent shall request or agree to a continuance thereof. If a hearing is not commenced within 30 days after receipt of the request for hearing or on the date to which continued with the agreement of respondent, or if the decision of the commissioner is not rendered within 30 days after completion of the hearing, the order of suspension shall be vacated and set aside.A hearing conducted under this section shall in all respects, except as otherwise expressly provided herein, conform to the substantive and procedural provisions of Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code applicable to a hearing on a statement of issues.
California Government Code Section 11504
This section of California law discusses the “statement of issues” and what it is. The law states as follows:
Cal Government Code 11504: “A hearing to determine whether a right, authority, license, or privilege should be granted, issued, or renewed shall be initiated by filing a statement of issues. The statement of issues shall be a written statement specifying the statutes and rules with which the respondent must show compliance by producing proof at the hearing and, in addition, any particular matters that have come to the attention of the initiating party and that would authorize a denial of the agency action sought.
The statement of issues shall be verified unless made by a public officer acting in his or her official capacity or by an employee of the agency before which the proceeding is to be held. The verification may be on information and belief. The statement of issues shall be served in the same manner as an accusation, except that, if the hearing is held at the request of the respondent, Sections 11505 and 11506 shall not apply and the statement of issues together with the notice of hearing shall be delivered or mailed to the parties as provided in Section 11509. Unless a statement to respondent is served pursuant to Section 11505, a copy of Sections 11507.5, 11507.6, and 11507.7, and the name and address of the person to whom requests permitted by Section 11505 may be made, shall be served with the statement of issues.
Attorney Steve Tip: Note that this section states that the “RESPONDENT” must show compliance (suggesting that the burden of proof is on the person denied a real estate license). Click here to watch our video regarding what a “burden of proof” is.
Listen to Attorney Steve, the Real Estate Lawyer, explain the “statement of issues” on Vondran Legal Videos!
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How to respond to receiving a statement of issues
Here are a few general tips to keep in mind when you are served with a statement of issue denying your real estate license or order suspending your real estate license:
1. Don’t panic. Immediately fill out the “notice of defense” document and turn that in. If you don’t return that within 15 days, you could potentially waive your right to a hearing.
2. Call a BRE defense attorney to discuss your case (we also handle mortgage lending MLO denials with the California Department of Business Oversight).
3. Make sure you respond within 30 days of being served the statement of issues, so that you can request a hearing, provide notice of defense, preserve your legal rights, and possibly seek to settle the case by making a confidential settlement offer
4. Do not run around and talk to everyone about your case. Keep it on the low down and only discuss issues with your legal counsel.
5. Prepare the evidence to show you are in compliance and have not violated the laws regarding disclosing prior criminal convictions. We have written several articles on this blog that discuss the need to disclose prior criminal convictions to the DRE.
6. If you want to fight the allegations, be prepared to obtain reference letters, and records of the conviction to be able to make your arguments that you made an honest mistake in “checking the wrong box” on the real estate application, or that you “forgot to disclose your criminal conviction because you thought it didn’t apply to other states” or because you “thought the conviction was expunged” etc.
Contact a DBO & CALBRE Defense Attorney
When your real estate license is on the line (including if you receive a statement of issues from the DBO), you want a professional firm skilled and experienced in dealing with the Bureau in real estate audits, investigations, and accusations, and who has negotiated settlement agreements in the past. Before you hire any other firm, you owe it to yourself to call us to hear about our affordable legal rates and track record of success working with the DRE/BRE in both California and Arizona. We handle cases in Los Angeles, Orange County, San Francisco/Bay Area, San Diego and Phoenix, Arizona. You may also fill out the contact form below to have one of our BRE legal counsel or staff contact you, normally within the hour. We look forward to working with you.
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