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IN THE MATTER OF: NEW ENGLAND JAMES J. D'AMATO * * * * * * * * * * * * * * * * * * * * |
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CONSENT ORDER |
WHEREAS, the Banking Commissioner (“Commissioner”) is charged with the administration of Sections 36a-671 to 36a-671d, inclusive, of the 2010 Supplement to the General Statutes contained in Part II of Chapter 669 of the Connecticut General Statutes, “Debt Adjusters and Debt Negotiation”;
WHEREAS, New England Modifications is a Connecticut limited liability company with an office at 66 Pepper Bush Lane, Newington, Connecticut;
WHEREAS, D’Amato is an individual who, at all times relevant hereto, was a Member of New England Modifications;
WHEREAS, the Commissioner, through the Consumer Credit Division of the Department of Banking, conducted an investigation pursuant to Section 36a-17(a) of the Connecticut General Statutes into the activities of New England Modifications and D’Amato to determine if they had violated, were violating or were about to violate the provisions of the Connecticut General Statutes within the jurisdiction of the Commissioner;
WHEREAS, as a result of such investigation, on September 8, 2010, the Commissioner, acting pursuant to Section 36a-52(b) of the Connecticut General Statutes, Section 36a-671a(b) of the 2010 Supplement to the General Statutes, and Sections 36a-52(a) and 36a-50(a) of the Connecticut General Statutes, issued a Temporary Order to Cease and Desist, Notice of Intent to Issue Order to Cease and Desist, Notice of Intent to Impose Civil Penalty and Notice of Right to Hearing (collectively “Order”) against New England Modifications and D’Amato, which Notice is incorporated herein by reference;
WHEREAS, the Order alleges that New England Modifications offered to engage in debt negotiation in this state without obtaining the required license, which constitutes a violation of Section 36a-671(b) of the 2010 Supplement to the General Statutes. Such violation would form the basis to issue an order to cease and desist pursuant to Section 36a-671a(b) of the 2010 Supplement to the General Statutes and Section 36a-52(a) of the Connecticut General Statutes and impose a civil penalty pursuant to Section 36a-671a(b) of the 2010 Supplement to the General Statutes and Section 36a-50(a) of the Connecticut General Statutes;
WHEREAS, the Order also alleges that D’Amato offered to engage in debt negotiation in this state without obtaining the required license, which constitutes a violation of Section 36a-671(b) of the 2010 Supplement to the General Statutes. Such violation would form the basis to issue an order to cease and desist pursuant to Section 36a-671a(b) of the 2010 Supplement to the General Statutes and Section 36a-52(a) of the Connecticut General Statutes and impose a civil penalty pursuant to Section 36a-671a(b) of the 2010 Supplement to the General Statutes and Section 36a-50(a) of the Connecticut General Statutes;
WHEREAS, on September 8, 2010, the Order was sent by registered mail, return receipt requested, to Respondents (Registered Mail Nos. RB028037399US, RB028037408US and RB028037411US);
WHEREAS, on September 9, 2010, D’Amato received the Order, and on September 11, 2010, New England Modifications received the Order;
WHEREAS, on September 30, 2010, the Department received an Appearance and Request for Hearing from the attorney for New England Modifications and D’Amato requesting a hearing, which hearing is currently subject to an open-ended continuance;
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, Daniel Young is an individual who, at all times relevant hereto, was also a Member of New England Modifications (“Young”);
WHEREAS, the Commissioner, New England Modifications and D’Amato now desire to resolve the matters alleged in the Order and set forth herein;
WHEREAS, New England Modifications, D’Amato and Young voluntarily agree to consent to the entry of the sanctions described below without admitting or denying any allegation contained in the Order and set forth herein and solely for the purpose of obviating the need for further formal administrative proceedings concerning the allegations contained in the Order and set forth herein;
WHEREAS, New England Modifications, D’Amato and Young agree that the Order may be used in construing the terms of this Consent order and agree to the language of this Consent Order;
WHEREAS, New England Modifications, D’Amato and Young each herein represent that it or he has not directly or indirectly engaged or offered to engage in debt negotiation in this state since September 2010;
WHEREAS, by email dated March 1, 2011, New England Modifications and D’Amato represented that New England Modifications and D’Amato have refunded in full all fees that have been paid to either New England Modifications or D’Amato by fifteen (15) Connecticut residents who had retained New England Modifications or D’Amato for debt negotiation services;
WHEREAS, on May 4, 2011, New England Modifications filed a Voluntary Petition for Chapter 7 bankruptcy in the United States Bankruptcy Court, District of Connecticut (case number 11-21343) (“Bankruptcy Filing”);
WHEREAS, the Commissioner has determined that no civil penalty will be imposed on New England Modifications based on such Bankruptcy Filing;
WHEREAS, D’Amato has otherwise demonstrated economic hardship, such that the Commissioner believes that D’Amato is financially incapable of paying any civil penalty;
WHEREAS, the Commissioner has determined that no civil penalty will be imposed on D’Amato based on such economic hardship;
WHEREAS, New England Modifications and D’Amato, through their execution of this Consent Order, voluntarily agree to waive their procedural rights, including a right to a hearing as it pertains to the allegations contained in the Order and set forth herein, and voluntarily waive their right to seek judicial review or otherwise challenge or contest the validity of this Consent Order;
WHEREAS, Young, through his execution of this Consent Order, voluntarily agrees to waive his procedural rights, including a right to notice and an opportunity for hearing as it pertains to the allegations set forth herein, and voluntarily waives his right to seek judicial review or otherwise challenge or contest the validity of this Consent Order;
AND WHEREAS, without determining the applicability of the automatic stay provision of the United States Bankruptcy Code, 11 U.S.C. § 362, New England Modifications agrees to the Commissioner’s authority to enter the terms and conditions set forth in this Consent Order for the purpose of obviating the need for formal administrative proceedings concerning the allegations contained in the Order.
CONSENT TO ENTRY OF SANCTIONS
WHEREAS, New England Modifications, D’Amato and Young, through their execution of this Consent Order, consent to the Commissioner’s entry of a Consent Order imposing the following sanctions:
| 1. | Commencing on the date that this Consent Order is approved by the Bankruptcy Court, D’Amato shall be BARRED for a period of ten (10) years from acting as a director, officer, general partner, member, shareholder or sole proprietor of any entity subject to the jurisdiction of the Commissioner; and |
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Commencing on the date that this Consent Order is approved by the Bankruptcy Court, Young is BARRED for a period of ten (10) years from acting as a director, officer, general partner, member, shareholder or sole proprietor of any entity subject to the jurisdiction of the Commissioner.
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CONSENT ORDER
NOW THEREFORE, the Commissioner enters the following:
| 1. | The Sanctions set forth above be and are hereby entered; |
| 2. |
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 New England Modifications, D’Amato or Young based upon the allegations contained herein; provided that issuance of this Consent Order is without prejudice to the right of the Commissioner to take enforcement action against New England Modifications, D’Amato or Young 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 New England Modifications, D’Amato or Young and reflected herein is subsequently discovered to be untrue; |
| 3. | In the event that the Bankruptcy Court fails to approve this Consent Order, the Commissioner shall retain his right to take all enforcement actions he considers appropriate against New England Modifications, D’Amato and Young; |
| 4. | In the event of any enforcement action against New England Modifications, D’Amato or Young as specified in paragraphs 2 and 3 above, or in the event that the Bankruptcy Court fails to approve this Consent Order, nothing herein shall be construed as a waiver by New England Modifications, D’Amato or Young of its or his right to pursue administrative remedies in any proceedings commenced by the Commissioner, including any and all rights to an administrative hearing, as well as any and all rights to appeal such administrative proceedings; |
| 5. | This Consent Order shall not preclude New England Modifications, D’Amato or Young from asserting any rights or pursuing any remedies in the event that the Commissioner commences any proceedings against New England Modifications, D’Amato or Young for acts or omissions not specifically addressed in this Consent Order, or for acts or omissions that do not arise from the facts or transactions addressed herein; and |
| 6. |
This Consent Order shall become final upon approval of the Bankruptcy Court.
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Issued at Hartford, Connecticut
this 4th day of October 2011. ________/s/_________
Howard F. Pitkin
Banking Commissioner
I, ______________________________, state on behalf of New England Modifications LLC, 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 New England Modifications LLC; that New England Modifications LLC agrees freely and without threat or coercion of any kind to comply with the sanctions entered herein; and that New England Modifications LLC 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:
Title:
New England Modifications LLC
State of: Connecticut
County of: Hartford
On this the 1st day of October 2011, before me, Perdita Drepaul, the undersigned officer, personally appeared James D’Amato who acknowledged himself/herself to be the Owner of New England Modifications LLC, a member managed/manager managed limited liability company that he/she as such _____________________, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the limited liability company by himself/herself as _____________________.
In witness whereof I hereunto set my hand.
________/s/_________
Notary Public
Date Commission Expires: 05-31-2016
I, Daniel J. Young, state on behalf of New England Modifications LLC, 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 New England Modifications LLC; that New England Modifications LLC agrees freely and without threat or coercion of any kind to comply with the sanctions entered herein; and that New England Modifications LLC 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: Daniel J Young
Title: Member
New England Modifications LLC
State of: CT
County of: Hartford
On this the 26th day of September 2011, before me, Cynthia Dimmock, the undersigned officer, personally appeared Daniel J. Young who acknowledged himself/herself to be the Member of New England Modifications LLC, a member managed/manager managed limited liability company that he/she as such _____________________, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the limited liability company by himself/herself as _____________________.
In witness whereof I hereunto set my hand.
________/s/_________
Notary Public
Date Commission Expires: Sept. 30, 2016
I, James J. D’Amato, state that I have read the foregoing Consent Order; that I know and fully understand its contents; that I agree freely and without threat or coercion of any kind to comply with the sanction entered and terms and conditions ordered herein; and that I voluntarily agree to enter into this Consent Order, expressly waiving the procedural rights set forth herein as to the matters described herein.
By: ________/s/_________
James J. D’Amato
State of: Connecticut
County of: Hartford
On this the 1st day of October 2011, before me, Perdita Drepaul, the undersigned officer, personally appeared James J. D’Amato, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained.
In witness whereof I hereunto set my hand.
________/s/_________
Notary Public
Date Commission Expires: 05-31-2016