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IN THE MATTER OF: XCAPITAL, INC. |
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CONSENT ORDER |
WHEREAS, the Banking Commissioner (“Commissioner”) is charged with the administration of Part I of Chapter 668, Sections 36a-485 to 36a-534c, inclusive, of the Connecticut General Statutes, “Mortgage Lenders, Correspondent Lenders, Brokers and Loan Originators”;
WHEREAS, Xcapital is a Nevada corporation that is currently licensed as a mortgage broker in Connecticut under Part I of Chapter 668, Sections 36a-485 et seq., of the Connecticut General Statutes;
WHEREAS, the Commissioner, through the Consumer Credit Division of the Department of Banking, conducted an investigation pursuant to the authority granted by Sections 36a-17(a) and 36a-498f of the Connecticut General Statutes, into the activities of Xcapital to determine if it had violated, was violating, or was about to violate the provisions of the Connecticut General Statutes within the jurisdiction of the Commissioner;
WHEREAS, on June 24, 2013, as a result of the investigation, the Commissioner, acting pursuant to Sections 36a-494(b), 36a-52(a) and 36a-50(a) of the Connecticut General Statutes, issued a Notice of Intent to Issue Order to Cease and Desist, Notice of Intent to Impose Civil Penalty and Notice of Right to Hearing (“Notice”) against Xcapital, which Notice is incorporated herein by reference;
WHEREAS, the Commissioner alleged in the Notice that Xcapital failed to file its MCR – Standard – Financial Condition report for 2012 that was due on March 31, 2013, in violation of Section 36a-534b(c)(3) of Connecticut General Statutes, which such violation forms the basis to issue an order to cease and desist pursuant to Sections 36a-494(b) and 36a-52(a) of the Connecticut General Statutes, and to impose a civil penalty pursuant to Sections 36a-494(b) and 36a 50(a) of the Connecticut General Statutes;
WHEREAS, on June 25, 2013, the Notice was sent by certified mail, return receipt requested, to Xcapital (Certified Mail Nos. 70123050000216929898 and 70123050000216929904);
WHEREAS, on June 28, 2013, Xcapital received the Notice sent by certified mail no. 70123050000216929904 and on July 3, 2013, requested a hearing;
WHEREAS, Section 4-177(c) of the Connecticut General Statutes and Section 36a-1-55(a) of the Regulations of Connecticut State Agencies provide that a contested case may be resolved by consent order, unless precluded by law;
WHEREAS, the Commissioner and Xcapital now desire to resolve the matters alleged in the Notice and set forth herein;
WHEREAS, on March 28, 2013, Xcapital filed certain other annual financial information on the Nationwide Mortgage Licensing System and Registry (“NMLS”);
WHEREAS, Xcapital represents to the Commissioner that it in good faith believed it had filed all required financial information, but admits that the MCR – Standard – Financial Condition (2012) described in the Notice and set forth herein was not filed on its due date;
WHEREAS, Xcapital acknowledges that this Consent Order is a public record and is a reportable event for purposes of the regulatory disclosure questions on NMLS, as applicable;
WHEREAS, Xcapital voluntarily agrees to consent to the entry of the sanction described below, solely for the purpose of obviating the need for further formal administrative proceedings concerning the allegation contained in the Notice and set forth herein;
WHEREAS, Xcapital herein represents to the Commissioner that it has reviewed and updated its internal policies, procedures and controls for timely and accurately filing required reports with the Commissioner through NMLS as required or as otherwise permitted under Part I of Chapter 668, Sections 36a-485 et seq., of the Connecticut General Statutes;
WHEREAS, Xcapital agrees that the Notice may be used in construing the terms of this Consent Order and agrees to the language of this Consent Order;
AND WHEREAS, Xcapital, through its execution of this Consent Order, voluntarily agrees to waive any applicable procedural rights, including a right to a hearing as it pertains to the allegation contained in the Notice and set forth herein, and voluntarily waives its right to seek judicial review or otherwise challenge or contest the validity of this Consent Order.
CONSENT TO ENTRY OF SANCTION
WHEREAS, Xcapital, through its execution of this Consent Order, consents to the Commissioner’s entry of a Consent Order imposing the following sanction:
No later than the date this Consent Order is executed by Xcapital, Xcapital shall remit to the Department of Banking by cashier’s check, certified check or money order made payable to “Treasurer, State of Connecticut”, the sum of Two Thousand Five Hundred Dollars ($2,500) as a civil penalty.
CONSENT ORDER
NOW THEREFORE, the Commissioner enters the following:
| 1. | The Sanction set forth above be and is hereby entered; |
| 2. | No later than the date this Consent Order is executed by Xcapital, Xcapital shall have satisfactorily filed all MCRs required to date. In the future, Xcapital shall timely and accurately file all required reports on NMLS or as otherwise permitted under Part I of Chapter 668 of the Connecticut General Statutes in connection with its current, and any future license issued to Xcapital; |
| 3. | Upon issuance of this Consent Order by the Commissioner, this matter will be resolved and the Commissioner will not take any future enforcement action against Xcapital based upon the allegation set forth in the Notice and contained herein; provided that issuance of this Consent Order is without prejudice to the right of the Commissioner to take enforcement action against Xcapital based upon a violation of this Consent Order or the matters underlying its entry, if the Commissioner determines that compliance with the terms herein is not being observed or if any representation made by Xcapital and reflected herein is subsequently discovered to be untrue; |
| 4. | So long as this Consent Order is promptly disclosed by Xcapital and its control persons on NMLS, as applicable, nothing in the issuance of this Consent Order shall adversely affect the ability of Xcapital to apply for or obtain licenses or renewal licenses under Part I of Chapter 668, Sections 36a-485 et seq., of the Connecticut General Statutes, provided all applicable legal requirements for such license are satisfied; and |
| 5. | This Consent Order shall become final when issued. |
Issued at Hartford, Connecticut
this 1st day of November 2013. ________/s/_________
Howard F. Pitkin
Banking Commissioner
I, Dan Koz, state on behalf of Xcapital Inc., that I have read the foregoing Consent Order; that I know and fully understand its contents; that I am authorized to execute this Consent Order on behalf of Xcapital Inc.; that Xcapital Inc., agrees freely and without threat or coercion of any kind to comply with the sanction entered and terms and conditions ordered herein; and that Xcapital Inc., voluntarily agrees to enter into this Consent Order, expressly waiving the procedural rights set forth herein as to the matters described herein.
By: ________/s/________
Name: Dan Koz
Title: President
Xcapital Inc.
State of: Illinois
County of: Cook
On this the 30th day of October 2013, before me, Karen Freschauf, the undersigned officer, personally appeared Dan Koz who acknowledged himself to be the President of Xcapital Inc., a corporation, and that he as such Person, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the corporation by himself as Dan Koz.
In witness whereof I hereunto set my hand.
_________/s/_________
Notary Public
Date Commission Expires: Mar. 19, 2017