IN THE SUPREME COURT OF FLORIDA (Before a Referee) The Florida Bar File Nos ,800(11E) REPORT OF REFEREE

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1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, vs. Complainant, CRISTINA GOMEZ, Respondent. / Supreme Court Case No. SC The Florida Bar File Nos ,800(11E) ,343(11E) ,072(11E) REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS: Pursuant to the undersigned being duly appointed as Referee for the Supreme Court of Florida to conduct disciplinary proceedings as provided for by Rule 3-7.6(a) of the Rules Regulating The Florida Bar, review of a consent for disbarment was undertaken. All of the pleadings, notices, motions, orders, and exhibits are forwarded with this report and the foregoing constitute the record in this case. The following attorneys appeared as counsel for the parties: On Behalf of The Florida Bar: Arlene Kalish Sankel The Florida Bar 444 Brickell Avenue Suite M-100 Miami, Florida On Behalf of the Respondent: Kevin P. Tynan 8142 N. University Drive Tamarac, Florida 33321

2 Respondent submitted a Consent for Disbarment which provides for disbarment effective nunc pro tunc to September 8, 2008, the effective date of her emergency suspension. II. FINDINGS OF FACT: In this consent for disbarment, respondent concedes that were this matter to proceed to trial, The Florida Bar would meet its burden of clear and convincing evidence with regard to certain factual matters set forth in the consent. Accordingly, I hereby accept and adopt those factual matters as my findings of fact in this cause and specifically find as follows: A. On or about February 22, 2007, a subpoena duces tecum was duly served upon respondent commanding her to appear before Carlos J. Ruga, Staff Auditor, and produce original bank statements, canceled checks, check stubs, deposit slips, wire transfers, cashier s checks issued with supporting documentation, receipt and disbursement journals, client ledger cards, HUD-1 statements and balance sheets for all real estate transactions, closing statements from any personal injury cases, bank and client reconciliations from the account identified as Cristina Gomez Attorney at Law IOTA, maintained at Bank of America account # , and any other trust accounts in which she had signatory capacity and any other account in which funds pertaining to clients were placed, all documents for lines of credit, loan applications, loan agreements and loan payments, for the period of January 1, 2006, to the present. B. Respondent appeared, but failed to produce all the required subpoenaed records. As a result, the Bar has not been able to conduct a complete audit. C. The Bar was able to ascertain that on July 7, 2006, respondent wired from her trust account # , maintained at Bank of America, the sum of $500, to The Law Firm of Shutts & Bowen. Said funds represented a 2

3 return of a deposit to the law firm. Even though respondent claimed to have no knowledge of having received any funds from Shutts & Bowen, she nonetheless made this disbursement using other clients funds unrelated to the Shutts & Bowen matter. D. Additionally, respondent was involved in fraudulent real estate transactions. The following paragraphs detail 3 fraudulent real estate transactions in which respondent was a willing participant. E. The first fraudulent transaction is identified as 3933 Rivera Drive, Coral Gables, Florida. The details pertaining to this transaction are set forth in paragraphs F - M below. F. On or about July 28, 2006, First Magnus Financial Corporation issued a Special Warranty Deed to Manuel Binker and Roberto Siam conveying to them the property at 3933 Rivera Drive. On July 31, 2006, respondent used $809, of other clients funds to finance this purchase by her associates Binker & Siam. The Special Warranty Deed was recorded on August 7, On that same date, respondent executed a Claim of Lien for legal services in the amount of $872, on the property. This document was recorded on August 9, G. On or about August 20, 2006, respondent prepared a Quit Claim Deed between Manuel Binker and Roberto Siam conveying the property identified as 3933 Rivera Drive, Coral Gables to Roberto Siam. This document was recorded January 5, H. On or about August 21, 2006, a HUD-1 Statement was executed in which Roberto Siam received a loan in the amount of $750, from Lendamerica Home Loans on the property identified as 3933 Rivera Drive, Coral Gables. I. According to respondent s client ledger card and the receipt and disbursement journal, the disbursement of the $750, was as follows: $36, was paid to Lendamerica Homes as fees; $9, was paid to Quantum Insurance Group and the balance of $704, was left in respondent s trust account as partial repayment of the funds advanced to finance the transaction. 3

4 J. Respondent failed to timely record the mortgage of Lendamerica, not recording it until January 5, K. In the interim, or about October 25, 2006, Manuel Binker and Roberto Siam sold the property identified as 3933 Rivera Drive, Coral Gables, to Ana Alonso Pujol for at least $1.1 million. The Warranty Deed was recorded on October 25, L. However, since respondent did not record the mortgage of $750, from Lendamerica Home Loans until January 5, 2007, Lendamerica Home Loans was left without collateral in their loan to Roberto Siam. M. On or about May 6, 2008, Attorney s Title Insurance Fund, Inc. filed a Complaint for Breach of Contract and Constructive Trust against Cristina Gomez a/k/a Cristina Hammond. N. The second fraudulent transaction is identified as 6515 Collins Avenue #902, Miami Beach, Florida and resulted in a benefit to respondent in the approximate amount of $835, These funds were used by respondent for personal and business matters unrelated to this transaction. The details pertaining to this transaction are set forth in paragraphs O T below. O. On or about June 17, 2005, Franklin Duran executed a Warranty Deed conveying the above property to Jose R. Gonzalez and Elvia Ayala. Elvia Ayala a/k/a Elvia Gomez is the mother of Cristina Gomez a/k/a Cristina Hammond. The Warranty Deed was recorded on November 16, A Mortgage in the amount of $643, reflecting Jose R. Gonzalez and Elvia Ayala as the Borrower, Argent Mortgage Company as the Lender, secured by the property identified as 6515 Collins Avenue #902, Miami Beach, Florida, dated July 6, 2005, was recorded on November 16, P. On or about October 5, 2006, respondent prepared a Warranty Deed between Jose Gonzalez and Elvia Ayala (her mother) granting the property identified as 6515 Collins Avenue #902, Miami Beach, Florida, to Cristina Hammond a/k/a Cristina Gomez. This Warranty Deed was recorded on April 10, 2007; that is, more than 6 months after the transfer. Q. In order to purchase the property from her mother, Cristina Gomez a/k/a 4

5 Cristina Hammond obtained 2 loans from Lendamerica Home Loans. One loan was in the amount of $668, and the other loan was in the amount of $167, These 2 mortgages were dated October 5, 2006, but recorded on April 10, R. The closing took place on October 5, The settlement agent was Cristina Gomez PA and the HUD-1 failed to disclose that the property located at 6515 Collins Avenue, Suite 902, Miami Beach, Florida had an existing mortgage in the amount of $643, from Argent Mortgage Company. S. According to respondent s own records, the funds to purchase the property were not paid to Jose Gonzalez or Elvia Ayala as reflected in the HUD- 1 Statement, but rather to unrelated parties; $670, was paid to Litton Loan Servicing and $112, was paid to Citicorp Mortgage. T. On February 4, 2008, a Notice of Lis Pendens was recorded seeking foreclosure of the property identified as 6515 Collins Avenue, Apt. 902, Miami Beach, Florida. The existing mortgage of Argent Mortgage which was never paid by respondent was delinquent. In addition, another Lis Pendens was filed on the property from the refinancing of the mortgages from Lendamerica. U. The third fraudulent transaction is identified as S.W. 76 Street, Miami, Florida and resulted in respondent s receipt of approximately $17, for facilitating numerous fraudulent conveyances of this property, as well as a payment to respondent s mother in the amount of $65, as satisfaction of a mortgage in the amount of $25, The details pertaining to this transaction are set forth in paragraphs V - HH below. V. On or about December 5, 2003, Calixto & Florinda Calderon executed a Warranty Deed conveying the above property to Jose & Bienvenida Aleman. This Warranty Deed was recorded on January 7, A Purchase Money Mortgage dated December 16, 2003, in the amount of $400,000.00, reflecting Jose & Bienvenida Aleman as the Mortgagor and James A. Gillis as the Mortgagee, secured by the property identified as S.W. 76 Street, Miami, Florida, was recorded on January 7, W. On or about April 22, 2004, respondent prepared a Ballon (sic) Mortgage in the amount of $25, between Jose & Bienvenida Aleman as 5

6 the Mortgagor and Elvia Ayala a/k/a Elvia Gomez (respondent s mother). X. On November 8, 2004, a Lis Pendens was recorded on the property. On February 9, 2005, a Summary Final Judgment was recorded. On March 24, 2005, the foreclosure sale was postponed. Y. On or about March 25, 2005, Jose & Bienvenida Aleman sold the property to Horacio Guerra. A Warranty Deed executed on March 25, 2005, conveying the property identified as S. W. 76 Street, Miami, Florida, to Horacio Guerra was prepared by respondent and recorded on April 4, 2005, together with 2 affidavits also prepared by respondent. Z. The property identified as S. W. 76 Street, Miami, Florida, was purchased by Horacio Guerra with 2 mortgages from Argent Mortgage Company; one in the amount of $488, and the other in the amount of $122, AA. On or about July 15, 2005, Horacio Guerra executed a Quit Claim Deed giving back the property identified as S. W. 76 Street, Miami, Florida, to Jose & Bienvenida Aleman and identified the transfer as For Love & Affection. BB. On August 14, 2006, respondent conducted the sale of the property identified as S.W. 76 Street, Miami, Florida, in which Jose & Bienvenida Aleman sold the property to Renato Tusi Vilaca, an individual who has been identified in newspapers as a Straw Buyer. CC. The Warranty Deed was prepared by respondent and was executed by the buyer and sellers on August 14, 2006 and was recorded on March 2, DD. The property identified as S. W. 76 Street, Miami, Florida, was purchased by Renato Tusi Vilaca with 2 mortgages from Lendamerica Home Loans; one in the amount of $640, and the other in the amount of $160, Both were recorded on March 2, EE. The HUD-1 Statement and the Balance Sheet reflected a payoff to respondent in the amount of $17,

7 FF. On the same day as the closing of the property identified as S. W. 76 Street, Miami, Florida, the buyer Renato Tusi Vilaca, executed a Quit Claim Deed conveying the property back to the original owners Jose & Bienvenida Aleman. This document was also prepared by the office of respondent and was recorded on March 21, GG. On June 4, 2007, respondent filed a Satisfaction of Mortgage of Elvia Ayala a/k/a Elvia Gomez (her mother) as the owner and holder of a certain mortgage deed executed by Jose Aleman and Bienvenida Aleman to Elvia Ayala dated April 22, 2004, for the sum of $65, The first page of the Satisfaction of Mortgage reflects that it was witnessed and sealed on April 6, 2005, and notarized on April 2, Apparently this mortgage was satisfied sometime in March, 2005, when Horacio Guerra purchased the property. HH. On or about July 20, 2007, Landamerica Home Loans recorded an assignment of the mortgages executed by Renato Tusi Vilaca to Deutsche Bank National Trust. On or about October 17, 2007, Deutsche Bank National Trust recorded a Lis Pendens on the property identified as S. W. 76 Street, Miami, Florida. III. RECOMMENDATION AS TO GUILT: Based upon the foregoing, I recommend that respondent be found guilty of violating Rule 3-4.3(Misconduct) of the Rules of Discipline and Rules (Safekeeping Property), 4-8.4(a) (A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another) and 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation...) of the Rules of Professional Conduct; and Rules 5-1.1(b) (Application of Trust Funds or Property to Specific Purpose) and 5-1.2(g) (Failure to comply with subpoena) of the Rules 7

8 Regulating Trust Accounts. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: Having reviewed the record of these proceedings, I find that respondent s plea and the recommendation of The Florida Bar as to terms of discipline are both fair to the respondent and in the best interest of the public. Accordingly, respondent s Consent for Disbarment and the terms of discipline recommended by The Florida Bar are accepted and hereby adopted as the recommendation of this Referee in this matter. It is recommended that respondent be disbarred effective nunc pro tunc to September 8, 2008, the effective date of her emergency suspension. Additionally, pursuant to the consent for disbarment, it is recommended that: (1)Respondent submit to a complete audit of her trust account(s) and any account in which she has placed client funds, when and if requested to do so by The Florida Bar; (2) Respondent submit her sworn financial affidavit to The Florida Bar on a form to be provided by the Bar within thirty days of the date of the consent for disbarment; and (3) Respondent keep The Florida Bar informed of her current mailing and physical address for two years subsequent to the date of any resulting order in this cause. V. STATEMENT OF COSTS AND RECOMMENDATION AS TO THE MANNER IN WHICH COSTS SHOULD BE TAXED: I find the following costs were reasonably incurred by The Florida Bar in these 8

9 proceedings and should be assessed against the Respondent: Administrative fee Rule 3-7.6(o)(1)(I). $ 1, Auditor s costs... $10, Total: $11, I recommend that the foregoing costs be assessed against the Respondent. It is further recommended that the execution issue with interest at the statutory rate to accrue on all costs not paid within 30 days of entry of the Supreme Court's final order. VI. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD: Age: 39 Date Admitted to the Bar: October 2, 1992 Prior disciplinary record: None Dated this day of March, GISELA CARDONNE ELY, Referee Dade County Courthouse, Room West Flagler Street Miami, Florida Copies to: Kevin P. Tynan, Attorney for Respondent Arlene Kalish Sankel, Bar Counsel Kenneth L. Marvin, Staff Counsel 9