Preview
16-2016-CA-007239-XXXX-MA
CV-A
Filing # 48952642 E-Filed 11/16/2016 10:47:53 AM
IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA
CLIFFORD MCGEHEE, an CASE NO.: 16-2016-CA-
individual, and TOLEMAC, INC., DIVISION: CV-
a Florida corporation,
Plantiffs,
Vv. JURY TRIAL DEMANDED
ANNE BRENSLEY, an individual,
BOSTON FINANCIAL TRUST
ADVISORS, LLC, a Massachusetts
limited liability company, ERIC
FEDEWA, an individual, and SAFE
IRA PARTNERS, LLC, a Florida
limited liability company,
Defendants.
/
PLAINTIFFS’ COMPLAINT
COME NOW the plaintiffs, CLIFFORD MCGEHEE (“Mr. McGehee”), and TOLEMAC,
INC. (“Tolemac”), by and through their undersigned attorney, and as and for their complaint
against defendants, ANNE BRENSLEY (“Ms. Brensley”), BOSTON FINANCIAL TRUST
ADVISORS, LLC (“BFT”), ERIC FEDEWA (“Mr. Fedewa”), and SAFE IRA PARTNERS, LLC
(“Safe IRA”), state the following:
Parties
1 Mr. McGehee is a Florida resident, is the President and Treasurer of Tolemac, and
is the majority shareholder of Tolemac.
2. Tolemac is a Florida corporation with its principal place of business located at 7520
State Road 13 N, St Augustine, FL 32092. Tolemac is a privately owned corporation that
purchases, develops, and leases real property.
3 Ms. Brensley is a Massachusetts resident, is the Manager of BFT, and is the sole
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FILED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 11/16/2016 12:20:44 PM
owner of BFT. Ms. Brensley is subject to the jurisdiction of this court because at all times material
to this complaint:
A Ms. Brensley was operating, conducting, engaging in, or carrying on a
business venture in Jacksonville, Duval County, Florida;
B Ms. Brensley committed a tortious act or acts in Jacksonville, Duval
County, Florida; or
Cc Ms. Brensley caused injury to persons or property within Jacksonville,
Duval County, Florida, arising out of an act or omission by Ms. Brensley outside Florida and at or
about the time of the injury Ms. Brensley was engaged in solicitation or service activities in
Jacksonville, Duval County, Florida.
4 BFT is a Massachusetts limited liability company with its principal place of
business located at 189 Plain Road, Wayland, MA 01778. BFT is a privately owned limited
liability company that advertises offering alternative investment options specifically in real estate,
venture capital, and film financing, and portfolio oversight thru wealth advisory and investment
advisory services for high net-worth individuals and family offices, and its services include
business succession planning, investment management, trust administration, trusteeship, estate
planning, wealth planning, and tax planning. BFT is subject to the jurisdiction of this court because
at all times material to this complaint:
A BFT was operating, conducting, engaging in, or carrying on a business
venture in Jacksonville, Duval County, Florida;
B BFT committed a tortious act or acts in Jacksonville, Duval County,
Florida; or
Cc. BFT caused injury to persons or property within Jacksonville, Duval
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County, Florida, arising out of an act or omission by BFT outside Florida and at or about the time
of the injury BFT was engaged in solicitation or service activities in Jacksonville, Duval County,
Florida.
5 Mr. Fedewa is a Virginia resident, is an employee and agent of Safe IRA. Mr.
Fedewa is subject to the jurisdiction of this court because at all times material to this complaint:
A Mr. Fedewa was operating, conducting, engaging in, or carrying on a
business venture in Jacksonville, Duval County, Florida;
B Mr. Fedewa committed a tortious act or acts in Jacksonville, Duval County,
Florida; or
Cc Mr. Fedewa caused injury to persons or property within Jacksonville, Duval
County, Florida, arising out of an act or omission by Mr. Fedewa outside Florida and at or about
the time of the injury Mr. Fedewa was engaged in solicitation or service activities in Jacksonville,
Duval County, Florida.
6 Safe IRA is a Florida limited liability company with its principal place of business
located at 1219 S. East Avenue, Suite #304, Sarasota, Florida 34239. Safe IRA is a privately owned
limited liability company that advertises a focus on buying undervalued assets and investing in
foreclosures, tax deeds, tax liens and other safe and secured asset classes. On information and
belief, Safe IRA also pools its investors funds and provides mortgage loans from these funds to
third parties. Safe IRA is subject to the jurisdiction of this court because at all times material to
this complaint:
A Safe IRA was operating, conducting, engaging in, or carrying on a business
venture in Jacksonville, Duval County, Florida;
B Safe IRA committed a tortious act or acts in Jacksonville, Duval County,
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Florida; or
Cc. Safe IRA caused injury to persons or property within Jacksonville, Duval
County, Florida, arising out of an act or omission by Safe IRA outside Florida and at or about the
time of the injury Safe IRA was engaged in solicitation or service activities in Jacksonville, Duval
County, Florida.
Jurisdiction and Venue
7
This court has jurisdiction over this matter because the Plaintiffs’ damages in
controversy exceeds the sum of $15,000.00, exclusive of interest, costs, and attorney’s fees.
8. This court is a proper venue for this matter because a substantial part of the events
or omissions giving rise to these claims occurred in Jacksonville, Duval County, Florida and the
property that is the subject of this action is situated in Jacksonville, Duval County, Florida.
General Allegation:
9 Tolemac owns real property located at 3535 St. Johns Bluff Road South,
Jacksonville, Florida 32224 (“Property”) more particularly described as follows:
“A PART OF SECTION 31, TOWNSHIP 2 SOUTH, RANGE 28 EAST, DUVAL
COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS: FOR A POINT OF REFERENCE COMMENCE AT THE
INTERSECTION OF THE EASTERLY LINE OF SECTION 31 WITH THE
SOUTHERLY RIGHT OF WAY LINE OF BEACH BOULEVARD, STATE
ROAD 212 (A 200 FOOT RIGHT OF WAY AS NOW ESTABLISHED);
THENCE SOUTH 89018'20" WEST ALONG SAID SOUTHERLY RIGHT OF
WAY LINE, A DISTANCE OF 785.93 FEET TO THE NORTHEASTERLY
CORNER OF THOSE LANDS DESCRIBED IN OFFICIAL RECORDS
VOLUME 3424, PAGE 723 OF THE CURRENT PUBLIC RECORDS OF SAID
COUNTY; THENCE SOUTH 02030'53" WEST, ALONG THE EASTERLY
LINE OF SAID LANDS, A DISTANCE OF 200.31 FEET; THENCE SOUTH
89018'20" WEST, ALONG THE SOUTHERLY LINE OF SAID LANDS, A
DISTANCE OF 189.96 FEET TO THE EASTERLY RIGHT OF WAY LINE OF
ST. JOHNS BLUFF ROAD (A 200 FOOT RIGHT OF WAY AS NOW
ESTABLISHED); THENCE SOUTH 03002'10" WEST, ALONG SAID
EASTERLY RIGHT OF WAY LINE, A DISTANCE OF 212,43 FEET; THENCE
CONTINUE ALONG SAID EASTERLY RIGHT OF WAY LINE SOUTH
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00041'40" EAST, A DISTANCE OF 312.87 FEET TO THE POINT OF
BEGINNING; THENCE NORTH 89018'20" EAST, A DISTANCE OF 224.30
FEET; THENCE SOUTH 00041'40 11 EAST, A DISTANCE OF 320.00 FEET;
THENCE SOUTH 89018 1 20" WEST, A DISTANCE OF 220.00 FFET TO A
POINT ON SAID EASTERLY RIGHT OF WAY LINE OF ST. JOHNS BLUFF
ROAD, SAID POINT LYING ON A CURVE CONCAVE EASTERLY AND
HAVING A RADIUS OF 5629.58 FEET; THENCE NORTHWESTERLY
ALONG SAID RIGHT OF WAY LINE AND ALONG THE ARC OF SAID
CURVE, A DISTANCE OF 220.01 FEET, MAKING A CENTRAL ANGLE OF
02014'21" AND HAVING A CHORD BEARING OF NORTH 01048'S1" WEST
AND A CHORD DISTANCE OF 219,99 FEET TO THE POINT OF TANGENCY
OF SAID CURVE; THENCE CONTINUE ALONG SAID EASTERLY RIGHT
OF WAY LINE, NORTH 00041'40" WEST, A DISTANCE OF 100.09 FEET TO
THE POINT OF BEGINNING.”
10. On, or around, November 18, 2014, Tolemac obtained a mortgage loan secured by
the Property from Velocity Mortgage Capital, Inc. Mr. McGehee provided a personal guarantee of
Tolemac’s payment and performance of its obligations pursuant to the mortgage and note.
11. On, or around, December 11, 2015, Tolemac and Mr. McGehee contacted BFT
concerning Tolemac’s desire to refinance Tolemac’s existing mortgage secured by the Property
and inquired of BFT whether it was capable of and interested in refinancing Tolemac’s existing
mortgage.
12. On December 11, 2015, BFT, by and through its Managing Member Ms. Brensely,
represented that it was capable of and interested in refinancing Tolemac’s existing mortgage
secured by the Property and indicated it anticipated closing the proposed refinance loan within
fourteen to twenty-one days. See letter dated December 11, 2015 from Ms. Brensely to Tolemac
attached hereto as Exhibit A and incorporated herein by reference for all purposes.
13. BFT, by and through Ms. Brensely, demanded, and Tolemac paid via wire transfer
to BFT’s designated bank account, $5,000.00 as an engagement fee to be applied to an $11,000.00
commitment fee BFT stated it would charge upon its commitment to fund and close the refinance
loan. See Exhibit A.
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14. BFT, by and through its Managing Member Ms. Brensely, subsequently brokered
the refinance loan to Safe IRA.
15. On, or around January 25, 2016, Safe IRA, by and through its employee and agent
Mr. Fedewa, provided a term sheet to Mr. McGehee. The term sheet provided in relevant part that:
A Mr. McGehee would be the borrower and guarantor of the refinance loan;
B Mr. McGehee would pay a 3% origination fee to Safe IRA;
Cc Mr. McGehee would pay a 2% broker fee to be split with 1% to be paid to
Joseph Berlin and 1% to BFT; and
D. Mr. McGehee would pay an additional $5,000.00 “loan cost deposit” to Safe
IRA for legal and filing costs, fees, and expenses for the refinance loan upon confirmation of an
impending closing of the loan.
See term sheet attached hereto as Exhibit B and incorporated herein by reference for all purposes.
16. On February 15, 2016, BFT, by and through its Managing Member Ms. Brensely,
provided Mr. McGehee with a commitment letter that indicated the closing process had begun,
provided a targeted closing date of February 23, 2016, and requested that Mr. McGehee pay the
additional $5,000.00 loan cost deposit to Safe IRA based on the impending closing of the loan.
See commitment letter dated February 15, 2016, attached hereto as Exhibit C and incorporated
herein by reference for all purposes.
17. On February 18, 2016, Mr. McGehee paid the additional $5,000.00 loan cost
deposit to Safe IRA via wire transfer to Safe IRA’s designated account based upon Ms. Brensely’s
representations on behalf of BFT and Mr. Fedewa’s representation on behalf of Safe IRA that the
closing of the loan was imminent; however, BFT and Safe IRA thereafter refused to fund and close
the loan.
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18. BFT, by and through Ms. Brensely, and Safe IRA, by and through Mr. Fedewa,
initially indicated the loan was not closed because a real estate broker that provided a broker’s
price opinion concerning the Property rescinded his opinion when Safe IRA personnel confronted
him concerning his valuations and accused him of improprieties, including allegedly providing
inaccurate and unreliable valuation information within his opinion.
19, Safe IRA, by and through Mr. Fedewa, then requested that Mr. McGehee pay an
additional $5,000.00 for an independent third party appraisal of the Property by a certified
appraiser approved by Safe IRA.
20. Mr. McGehee paid $5,000.00 for an independent third party appraiser, pre-
approved by Mr. Fedewa on behalf of Safe IRA, to conduct an expedited appraisal of the Property.
Mr. McGehee only did so after obtaining confirmation from Mr. Fedewa, on behalf of Safe IRA,
and Ms. Brensely, on behalf of BFT, that Safe IRA and BFT would reimburse Mr. McGehee for
the additional cost of the expedited appraisal should the loan not close.
21. After receiving the appraisal of the Property, Safe IRA and BFT refused to fund
and close the loan.
22. Tolemac and Mr. McGehee have repeatedly requested and demanded that BFT and
Safe IRA refund the $5,000.00 engagement fee paid to BFT, refund the $5,000.00 loan cost deposit
paid to Safe IRA, and reimburse plaintiffs for the cost of the expedited appraisal of the Property.
23. BFT and Safe IRA have refused to refund the $5,000.00 engagement fee paid to
BFT, refused to refund the $5,000.00 loan cost deposit paid to Safe IRA, and refused to reimburse
plaintiffs for the cost of the expedited appraisal of the Property.
24. In this action plaintiffs assert claims of civil theft against BFT (count I) and Safe
IRA (count XVI), conversion against BFT (count II) and Safe IRA (count XVID), fraud against
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Ms. Brensely (counts III and V), BFT (counts IV and VI), Mr. Fedewa (counts XVIII and XX),
and Safe IRA (counts XIX and XXI), violations of Section 494, Florida Statutes against Ms.
Brensely (counts VII and IX), BFT (counts VIII and X), Mr. Fedewa (counts XXII and XXIV),
and Safe IRA (counts XXIII and XXV), violations of Section 687, Florida Statutes against Ms.
Brensely (counts XI and XIII), BFT (counts XII and XIV), Mr. Fedewa (counts XXVI and
XXVIII), and Safe IRA (counts XXVII and XXIX), and breach of contract against BFT (count
XV) and Safe IRA (count XXX).
Count I — Tolemac’s Civil Theft Claim against BFT
25. Plaintiffs repeat and reallege paragraphs 1 through 24 above as fully set forth and
realleged herein.
26. This is an action by Tolemac for civil theft against BFT.
27. On, or before, December 11, 2015, Tolemac requested that BFT approve and fund
a refinance of its existing mortgage secured by the Property. See Exhibit A.
28. BFT required Tolemac to pay an engagement fee of $5,000.00 upon retaining
BFT’s services to be applied to an $11,000.00 commitment fee it would charge separately and in
addition to a loan origination fee of 3% and lender fee of 2% upon commitment to fund the
refinance loan. See Exhibit A.
29. On December 18, 2015, Tolemac paid BFT the $5,000.00 engagement fee in the
form of a $5,000.00 wire payment to BFT’s designated bank account per Ms. Brensely’s
instructions.
30. BFT never indicated to Tolemac prior to its payment of the $5,000.00 engagement
fee that such fee was non-refundable or would be retained regardless of whether the loan was
funded and closed.
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31. BFT accepted the $5,000.00 engagement fee and used these funds for its own
benefit despite knowing it did not have an ability to fund and close the loan.
32. BFT accepted the $5,000.00 engagement fee and used these funds for its own
benefit despite knowing it was not a licensed Florida mortgage lender or Florida mortgage broker.
33. Defendant BFT accepted the $5,000.00 engagement fee and used these funds for
its own benefit despite knowing the loan had not and was not going to close.
34. The $5,000.00 engagement fee was to be used solely as a deposit to be applied to
the listed commitment fee upon BFT’s commitment to fund the proposed loan.
35. Tolemac requested BFT refund the engagement fee when BFT revealed it would
not be the lender for the loan and brokered the loan to Safe IRA; however, BFT refused to do so
at that time.
36. Tolemac requested BFT refund the engagement fee when BFT and Safe IRA failed
to fund and close the loan on February 23, 2016; however, BFT refused to do so at that time.
37. Tolemac has repeatedly requested BFT refund the engagement fee after BFT and
Safe IRA failed to fund and close the loan after receiving the property appraisal of the Property;
however, BFT has repeatedly refused to do so.
38. BFT knowingly obtained funds from Tolemac with the criminal intent to
permanently deprive Tolemac of the right to and benefits of such funds and to appropriate such
funds to its own use and benefit.
39. On August 11, 2016, Tolemac, through its undersigned attorney, sent a statutory
demand letter in accordance with Section 772.11, Florida Statutes to BFT demanding that BFT
tepay three times the value of funds it stole from Tolemac. See demand letter attached hereto as
Exhibit D and incorporated herein by reference for all purposes.
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40. Tolemac has retained the services of the undersigned attorney and is required to
pay a reasonable fee for his services.
Al. Section 772.11, Florida Statutes provides statutory authority for an award of
Tolemac’s reasonable attorney’s fees and costs incurred in successfully pursuing this claim against
BFT.
WHEREFORE, Tolemac demands judgment against BFT for treble damages pursuant to
Section 772.11, pre-judgment interest, post-judgment interest, attorney’s fees, costs, and such
other and further relief as this honorable court deems just and proper.
Count II — Tolemac’s Claim of Conversion against BFT
42. Plaintiffs repeat and reallege paragraphs 1 through 41 as fully set forth herein.
43. This is an action by Tolemac for conversion against BFT.
44, On, or about December 18, 2015, BFT converted to its own use $5,000.00, that was
then the property of Tolemac, which Tolemac deposited with BFT only to be applied to a
commitment fee if and when BFT committed to fund the refinance of Tolemac’s existing mortgage
secured by the Property.
45. Tolemac has demanded BFT refund the $5,000.00 and BFT has repeatedly refused
to do so.
WHEREFORE Tolemac demands judgment against BFT for damages, pre-judgment
interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this
honorable court deems just and proper.
Count III — Tolemac’s Claim of Fraud against Ms. Brensely
46. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein.
47. This is an action by Tolemac for fraud against Ms. Brensely.
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48. Ms. Brensely, as the Managing Member of BFT, intentionally made the following
false statements concerning material facts to Tolemac:
A BFT was licensed to fund and close a mortgage loan as a lender;
B. BFT was licensed to broker the mortgage loan;
Cc BFT had available funds committed and set aside to fund and close the
mortgage loan;
The $5,000.00 engagement fee was a down payment toward a commitment
fee;
BFT was beginning the closing process for the refinance loan as of February
15, 2016;
F. The $5,000 loan cost deposit paid to Safe IRA was to cover all anticipated
costs of closing the loan; and
G BFT would refund Tolemac’s cost of the expedited appraisal of the
Property, up to the amount of the engagement fee, less any reimbursement for such cost made by
Safe IRA in the event that the refinance loan did not close.
49. Ms. Brensely knew the statements where false at the time she made the statements.
50. Ms. Brensely intended that Tolemac would rely on these false statements and
deposit the engagement fee with BFT and the loan cost deposit with Safe IRA as a direct result of
its reliance on these statements.
Sl. Tolemac did in fact rely on Ms. Brensely’s false statements and deposited the
engagement fee with BFT, the loan cost deposit with Safe IRA, and paid for the expedited appraisal
of the property as direct result of its reliance on these statements.
52. Tolemac has incurred actual damages in excess of $15,000.00 as a result of its
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teliance on Ms. Brensely’s false statements.
WHEREFORE, Tolemac demands judgment against Ms. Brensely for damages, pre-
judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief
as this honorable court deems just and proper.
Count IV — Tolemac’s Claim of Fraud against BFT
53. Plaintiffs repeat and reallege paragraphs 46 through 52 as fully set forth herein.
54. This is an action by Tolemac for fraud against BFT.
55. At all times material to this complaint Ms. Brensely was an agent of BFT and was
acting within the scope of her employment and representative capacity as the Managing Member
of BFT.
56. At all times material to this complaint Ms. Brensely was employed to act for BFT
and her actions were controlled by BFT and subject to BFT’s right of control.
357. Ms. Brensely was performing services that she was employed to perform for BFT
when she perpetrated the fraud upon Tolemac.
58. Ms. Brensely was acting, at least in part, because of a desire to serve BFT and was
doing something that was reasonably incidental to her employment with BFT or reasonably
forseeable and reasonably to be expected of persons similarly employed when she perpretrated the
fraud upon Tolemac.
59. Ms. Brensely was an apparent agent of BFT and was acting within the scope of her
apparent authority at the time and place of the incident in this case.
60. Ms. Brensely by her words or conduct caused or allowed Tolemac to believe that
Ms. Brensely was an agent of and had authority to act for BFT and Tolemac justifiably relied upon
that belief in dealing with Ms. Brensely as the agent of BFT.
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61. BFT is responsible for the fraud Ms. Brensely perpetrated upon Tolemac during the
course of her employment for BFT.
62. BFT is responsible for the fraud Ms. Brensely perpetrated upon Tolemac as an
apparent agent of BFT while acting within the scope of her apparent authority on behalf of BFT.
WHEREFORE, Tolemac demands judgment against BFT for damages, pre-judgment
interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this
honorable court deems just and proper.
Count V— Mr. McGehee’s Claim of Fraud against Ms. Brensely
63. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein.
64. This is an action by Mr. McGehee for fraud against Ms. Brensely.
65. Ms. Brensely, as the Managing Member of BFT, intentionally made the following
false statements concerning material facts to Mr. McGehee:
A BFT was licensed to fund and close a mortgage loan as a lender;
B. BFT was licensed to broker the mortgage loan;
Cc BFT had available funds committed and set aside to fund and close the
mortgage loan;
D. The $5,000.00 engagement fee was a down payment toward the
commitment fee;
E. BFT was beginning the closing process for the refinance loan as of February
15, 2016;
F. The $5,000 loan cost deposit paid to Safe IRA was to cover all anticipated
costs of closing the loan; and
G BFT would refund Mr. McGehee’s cost of the expedited appraisal of the
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Property, up to the amount of the engagement fee, less any reimbursement for such cost made by
Safe IRA in the event that the refinance loan did not close.
66. Ms. Brensely knew the statements where false at the time she made the statements.
67. Ms. Brensely intended that Mr. McGehee would rely on these false statements and
deposit the engagement fee with BFT, the loan cost deposit with Safe IRA, and pay for an
expedited appraisal of the Property as a direct result of his reliance on these statements.
68. Mr. McGehee did in fact rely on Ms. Brensely’s false statements and deposited the
engagement fee with BFT, the loan cost deposit with Safe IRA, and paid for the expedited appraisal
of the property as direct result of his reliance on these statements.
69. Mr. McGehee has incurred actual damages in excess of $15,000.00 as a result of
his reliance on Ms. Brensely’s false statements.
WHEREFORE, Mr. McGehee demands judgment against Ms. Brensley for damages, pre-
judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief
as this honorable court deems just and proper.
Count VI — Mr. McGehee’s Claim of Fraud against BFT
70. Plaintiffs repeat and reallege paragraphs 63 through 69 as fully set forth herein.
71. This is an action by Mr. McGehee for fraud against BFT.
72. At all times material to this complaint Ms. Brensely was an agent of BFT and was
acting within the scope of her employment and representative capacity as the Managing Member
of BFT.
73. At all times material to this complaint Ms. Brensely was employed to act for BFT
and her actions were controlled by BFT and subject to BFT’s right of control.
7A. Ms. Brensely was performing services that she was employed to perform for BFT
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when she perpetrated the fraud upon Mr. McGehee.
75. Ms. Brensely was acting, at least in part, because of a desire to serve BFT and was
doing something that was reasonably incidental to her employment with BFT or reasonably
forseeable and reasonably to be expected of persons similarly employed when she perpretrated the
fraud upon Mr. McGehee.
76. Ms. Brensely was an apparent agent of BFT and was acting within the scope of her
apparent authority at the time and place of the incident in this case.
77. Ms. Brensely by her words or conduct caused or allowed Mr. McGehee to believe
that Ms. Brensely was an agent of and had authority to act for BFT, and Mr. McGehee justifiably
relied upon that belief in dealing with Ms. Brensely as the agent of BFT.
78. BFT is responsible for the fraud Ms. Brensely perpetrated upon Mr. McGehee
during the course of her employment for BFT.
79. BFT is responsible for the fraud Ms. Brensely perpetrated upon Mr. McGehee as
an apparent agent of BFT while acting within the scope of her apparent authority on behalf of BFT.
WHEREFORE, Mr. McGehee demands judgment against BFT for damages, pre-judgment
interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this
honorable court deems just and proper.
Count VII —Tolemac’s Section 494.0019(1) Claim against Ms. Brensely
80. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein.
81. This is an action by Tolemac against Ms. Brensely for damages pursuant to Section
494.0019(1), Florida Statutes.
82. Ms. Brensely, in her representative capacity of BFT, solicited or offered to solicit
a mortgage loan, accepted or offered to accept an application for a mortgage loan, and negotiated
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or offered to negotiate the terms or conditions of a new mortgage loan on behalf of Tolemac
concerning the Property.
83. Ms. Brensely, in her representative capacity of BFT, made a commitment to
advance funds to Tolemac as an applicant for a mortgage loan and for compensation or gain offered
to sell the mortgage loan to Tolemac to a non-institutional investor or investors.
84, During the course of Tolemac’s dealings with Ms. Brensely, Ms. Brensely acted as
a loan originator in the state of Florida without a current active license issued pursuant to Section
494.00312, Florida Statutes.
85. During the course of Tolemac’s dealings with Ms. Brensely, Ms. Brensely acted as
a mortgage broker in the state of Florida without a current active license issued pursuant to Section
494.00321, Florida Statutes.
86. During the course of Tolemac’s dealings with Ms. Brensely, Ms. Brensely acted as
a mortgage lender in the state of Florida without a current active license issued pursuant to Section
494.00611, Florida Statutes.
87. Ms. Brensely has violated Chapter 494, Florida Statutes during her interactions
with Tolemac as follows:
A Ms. Brensely acted as a loan originator in this state without a current active
license issued by the Florida Office of Financial Regulation;
B Ms. Brensely acted as a mortgage broker in this state without a current
active license issued by the Florida Office of Financial Regulation;
Cc Ms. Brensely acted as a mortgage lender in this state without a current active
license issued by the Florida Office of Financial Regulation;
D. Ms. Brensely knowingly or willingly employed a device, scheme, or artifice
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to defraud Tolemac of its money;
E. Ms. Brensely engaged in a transaction, practice, or course of business which
operated as a fraud upon Tolemac in connection with the sale of a mortgage loan;
F. Ms. Brensely obtained Tolemac’s property by fraud, willful
misrepresentation of a future act, or false promise;
G Ms. Brensely received or paid a fee or commission in a mortgage loan
transaction to a person or entity other than a licensed mortgage broker or mortgage lender;
H. Ms. Brensely failed to immediately, upon receipt, place the $5,000.00
engagement fee into a segregated account with a financial institution located in Florida insured by
the federal government and hold such funds in trust for the Tolemac in such account until
disbursement;
I Ms. Brensely charged and retained the $5,000.00 engagement fee, which
was a prohibited fee in violation of Section 494.0042, Florida Statutes, because such fee was not
disclosed as a non-refundable application fee and such fee exceeded the maximum $250.00 loan
origination fee that may have been charged based on the loan not funding; and
J. Ms. Brensely failed to refund the engagement fee in violation of Sections
494.007(3) and 494.0071, Florida Statutes.
88. Ms. Brensely’s actions in violation of Chapter 494, Florida Statutes subjects every
person making the transaction and every licensee, director, or officer who participated in making
the transaction jointly and severally liable to every party to the transaction in an action for damages
incurred by the party or parties.
89. Tolemac has incurred damages in excess of $15,000.00 as a direct result of Ms.
Brensely’s actions in violation of Chapter 494, Florida Statutes.
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90. Tolemac has retained the services of the undersigned attorney and is required to
pay him a reasonable fee for his services. Chapter 494, Florida Statutes authorizes an award of
Tolemac’s attorney’s fees and costs incurred in this action.
WHEREFORE, Tolemac demands judgment against Ms. Brensley for damages, pre-
judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief
as this honorable court deems just and proper.
Count VIII — Tolemac’s Section 494.0019(1) Claim against BFT
91. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein.
92. This is an action by Tolemac against BFT for damages pursuant to Section
494.0019(1), Florida Statutes.
93. BFT, by and through Ms. Brensely acting in her representative capacity of BFT,
solicited or offered to solicit a mortgage loan, accepted or offered to accept an application for a
mortgage loan, and negotiated or offered to negotiate the terms or conditions of a new mortgage
loan on behalf of Tolemac concerning the Property.
94, BFT, by and through Ms. Brensely acting in her representative capacity of BFT,
made a commitment to advance funds to Tolemac as an applicant for a mortgage loan and for
compensation or gain offered to sell the mortgage loan to Tolemac to a non-institutional investor
or investors.
95. During the course of Tolemac’s dealings with BFT, by and through Ms. Brensely
acting in her representative capacity of BFT, BFT acted as a loan originator in the state of Florida
without a current active license issued pursuant to Section 494.00312, Florida Statutes.
96. During the course of Tolemac’s dealings with BFT, by and through Ms. Brensely
acting in her representative capacity of BFT, BFT acted as a mortgage broker in the state of Florida
Page 18 of 60
without a current active license issued pursuant to Section 494.00321, Florida Statutes.
97. During the course of Tolemac’s dealings with BFT, by and through Ms. Brensely
acting in her representative capacity of BFT, BFT acted as a mortgage lender in the state of Florida
without a current active license issued pursuant to Section 494.00611, Florida Statutes.
98. BFT has violated Chapter 494, Florida Statutes during its interactions with Tolemac
as follows:
A BFT acted as a loan originator in this state without a current active license
issued by the Florida Office of Financial Regulation;
B BFT acted as a mortgage broker in this state without a current active license
issued by the Florida Office of Financial Regulation;
Cc BFT acted as a mortgage lender in this state without a current active license
issued by the Florida Office of Financial Regulation;
D. BFT knowingly or willingly employed a device, scheme, or artifice to
defraud Tolemac of its money;
E. BFT engaged in a transaction, practice, or course of business which
operated as a fraud upon Tolemac in connection with the sale of a mortgage loan;
F. BFT obtained Tolemac’s property by fraud, willful misrepresentation of a
future act, or false promise;
G BFT received or paid a fee or commission in a mortgage loan transaction to
a person or entity other than a licensed mortgage broker or mortgage lender;
H. BFT failed to immediately, upon receipt, place the $5,000.00 engagement
fee into a segregated account with a financial institution located in Florida insured by the federal
government and hold such funds in trust for Tolemac in such account until disbursement;
Page 19 of 60
I BFT charged and retained the $5,000.00 engagement fee, which was a
prohibited fee in violation of Section 494.0042, Florida Statutes, because such fee was not
disclosed as a non-refundable application fee and such fee exceeded the maximum $250.00 loan
origination fee that may have been charged based on the loan not funding; and
J. BFT failed to refund the engagement fee in violation of Sections 494.007(3)
and 494.0071, Florida Statutes.
99. BFT’s actions in violation of Chapter 494, Florida Statutes subjects every person
making the transaction and every licensee, director, or officer who participated in making the
transaction jointly and severally liable to every party to the transaction in an action for damages
incurred by the party or parties.
100. Tolemac has incurred damages in excess of $15,000.00 as a direct result of BFT’s
actions in violation of Chapter 494, Florida Statutes.
101. Tolemac has retained the services of the undersigned attorney and is required to
pay him a reasonable fee for his services. Chapter 494, Florida Statutes authorizes an award of
Tolemac’s attorney’s fees and cost incurred in this action.
WHEREFORE, Tolemac demands judgment against BFT for damages, pre-judgment
interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this
honorable court deems just and proper.
Count IX — Mr. McGehee’s Section 494.0019(1) Claim against Ms. Brensely
102. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein.
103. This is an action by Mr. McGehee against Ms. Brensely for damages pursuant to
Section 494.0019(1), Florida Statutes.
104, Ms. Brensely, in her representative capacity of BFT, solicited or offered to solicit
Page 20 of 60
a mortgage loan, accepted or offered to accept an application for a mortgage loan, and negotiated
or offered to negotiate the terms or conditions of a new mortgage loan on behalf of Mr. McGehee
concerning the Property.
105. Ms. Brensely, in her representative capacity of BFT, made a commitment to
advance funds to Mr. McGehee as an applicant for a mortgage loan and for compensation or gain
offered to sell the mortgage loan to Mr. McGehee to a non-institutional investor or investors.
106. During the course of Mr. McGehee’s dealings with Ms. Brensely, Ms. Brensely
acted as a loan originator in the state of Florida without a current active license issued pursuant to
Section 494.00312, Florida Statutes.
107. During the course of Mr. McGehee’s dealings with Ms. Brensely, Ms. Brensely
acted as a mortgage broker in the state of Florida without a current active license issued pursuant
to Section 494.00321, Florida Statutes.
108. During the course of Mr. McGehee’s dealings with Ms. Brensely, Ms. Brensely
acted as a mortgage lender in the state of Florida without a current active license issued pursuant
to Section 494.00611, Florida Statutes.
109. Ms. Brensely has violated Chapter 494, Florida Statutes during her interactions
with Mr. McGehee as follows:
A Ms. Brensely acted as a loan originator in this state without a current active
license issued by the Florida Office of Financial Regulation;
B Ms. Brensely acted as a mortgage broker in this state without a current
active license issued by the Florida Office of Financial Regulation;
Cc Ms. Brensely acted as a mortgage lender in this state without a current active
license issued by the Florida Office of Financial Regulation;
Page 21 of 60
D. Ms. Brensely knowingly or willingly employed a device, scheme, or artifice
to defraud Mr. McGehee of his money;
E. Ms. Brensely engaged in a transaction, practice, or course of business which
operated as a fraud upon Mr. McGehee in connection with the sale of a mortgage loan;
F. Ms. Brensely obtained Mr. McGehee’s property by fraud, willful
misrepresentation of a future act, or false promise;
G Ms. Brensely received or paid a fee or commission in a mortgage loan
transaction to a person or entity other than a licensed mortgage broker or mortgage lender;
H. Ms. Brensely failed to immediately, upon receipt, place the $5,000.00
engagement fee into a segregated account with a financial institution located in Florida insured by
the federal government and hold such funds in trust for Mr. McGehee in such account until
disbursement;
I Ms. Brensely charged and retained the $5,000.00 engagement fee, which
was a prohibited fee in violation of Section 494.0042, Florida Statutes, because such fee was not
disclosed as a non-refundable application fee and such fee exceeded the maximum $250.00 loan
origination fee that may have been charged based on the loan not funding; and
J Ms. Brensely failed to refund the engagement fee in violation of Sections
494.007(3) and 494.0071, Florida Statutes.
110. Ms. Brensely’s actions in violation of Chapter 494, Florida Statutes subjects every
person making the transaction and every licensee, director, or officer who participated in making
the transaction jointly and severally liable to every party to the transaction in an action for damages
incurred by the party or parties.
1. Mr. McGehee has incurred damages in excess of $15,000.00 as a direct result of
Page 22 of 60
Ms. Brensely’s actions in violation of Chapter 494, Florida Statutes.
112, Mr. McGehee has retained the services of the undersigned attorney and is required
to pay him a reasonable fee for his services. Chapter 494, Florida Statutes authorizes an award of
Mr. McGehee’s attorney’s fees and costs incurred in this action.
WHEREFORE, Mr. McGehee demands judgment against Ms. Brensley for damages, pre-
judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief
as this honorable court deems just and proper.
Count X — Mr. McGehee’s Section 494.0019(1) Claim against BFT
113. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein.
114, This is an action by Mr. McGehee against BFT for damages pursuant to Section
494.0019(1), Florida Statutes.
115. BFT, by and through Ms. Brensely acting in her representative capacity of BFT,
solicited or offered to solicit a mortgage loan, accepted or offered to accept an application for a
mortgage loan, and negotiated or offered to negotiate the terms or conditions of a new mortgage
loan on behalf of Mr. McGehee concerning the Property.
116. BFT, by and through Ms. Brensely acting in her representative capacity of BFT,
made a commitment to advance funds to Mr. McGehee as an applicant for a mortgage loan and for
compensation or gain offered to sell the mortgage loan to Mr. McGehee to a non-institutional
investor or investors.
117. During the course of Mr. McGehee’s dealings with BFT, by and through Ms.
Brensely acting in her representative capacity of BFT, BFT acted as a loan originator in the state
of Florida without a current active license issued pursuant to Section 494.00312, Florida Statutes.
118. During the course of Mr. McGehee’s dealings with BFT, by and through Ms.
Page 23 of 60
Brensely acting in her representative capacity of BFT, BFT acted as a mortgage broker in the state
of Florida without a current active license issued pursuant to Section 494.00321, Florida Statutes.
119. During the course of Mr. McGehee’s dealings with BFT, by and through Ms.
Brensely acting in her representative capacity of BFT, BFT acted as a mortgage lender in the state
of Florida without a current active license issued pursuant to Section 494.00611, Florida Statutes.
120. BFT has violated Chapter 494, Florida Statutes during its interactions with Mr.
McGehee as follows:
A BFT acted as a loan originator in this state without a current active license
issued by the Florida Office of Financial Regulation;
B BFT acted as a mortgage broker in this state without a current active license
issued by the Florida Office of Financial Regulation;
Cc BFT acted as a mortgage lender in this state without a current active license
issued by the Florida Office of Financial Regulation;
D. BFT knowingly or willingly employed a device, scheme, or artifice to
defraud Mr. McGehee of his money;
E. BFT engaged in a transaction, practice, or course of business which
operated as a fraud upon Mr. McGehee in connection with the sale of a mortgage loan;
F. BFT obtained Mr. McGehee’s property by fraud, willful misrepresentation
of a future act, or false promise;
G BFT received or paid a fee or commission in a mortgage loan transaction to
a person or entity other than a licensed mortgage broker or mortgage lender;
H. BFT failed to immediately, upon receipt, place the $5,000.00 engagement
fee into a segregated account with a financial institution located in Florida insured by the federal
Page 24 of 60
government and hold such funds in trust for Mr. McGehee in such account until disbursement;
I BFT charged and retained the $5,000.00 engagement fee, which was a
prohibited fee in violation of Section 494.0042, Florida Statutes, because such fee was not
disclosed as a non-refundable application fee and such fee exceeded the maximum $250.00 loan
origination fee that may have been charged based on the loan not funding; and
J BFT failed to refund the engagement fee in violation of Sections 494.007(3)
and 494.0071, Florida Statutes.
121, BFT’s actions in violation of Chapter 494, Florida Statutes subjects every person
making the transaction and every licensee, director, or officer who participated in making the
transaction jointly and severally liable to every party to the transaction in an action for damages
incurred by the party or parties.
122. Mr. McGehee has incurred damages in excess of $15,000.00 as a direct result of
BFT’s actions in violation of Chapter 494, Florida Statutes.
123. Mr. McGehee has retained the services of the undersigned attorney and is required
to pay him a reasonable fee for his services. Chapter 494, Florida Statutes authorizes an award of
Mr. McGehee’s attorney’s fees and cost incurred in this action.
WHEREFORE, Mr. McGehee demands judgment against BFT for damages, pre-judgment
interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this
honorable court deems just and proper.
Count XI —Tolemac’s Section 687 Claim against Ms. Brensely
124. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein.
125. This is an action by Tolemac against Ms. Brensely for damages pursuant to Section
687.147(1), Florida Statutes.
Page 25 of 60
126. Ms. Brensely, acting in her representative capacity of BFT, for and in expectation
of consideration offered to arrange and attempted to arrange a loan of money for Tolemac.
127. Ms. Brensely, acting in her representative capacity of BFT, for and in expectation
of consideration assisted or advised Tolemac in obtaining or attempting to obtain a loan
Preview
16-2016-CA-007239-XXXX-MA CV-A Filing # 48952642 E-Filed 11/16/2016 10:47:53 AM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CLIFFORD MCGEHEE, an CASE NO.: 16-2016-CA- individual, and TOLEMAC, INC., DIVISION: CV- a Florida corporation, Plantiffs, Vv. JURY TRIAL DEMANDED ANNE BRENSLEY, an individual, BOSTON FINANCIAL TRUST ADVISORS, LLC, a Massachusetts limited liability company, ERIC FEDEWA, an individual, and SAFE IRA PARTNERS, LLC, a Florida limited liability company, Defendants. / PLAINTIFFS’ COMPLAINT COME NOW the plaintiffs, CLIFFORD MCGEHEE (“Mr. McGehee”), and TOLEMAC, INC. (“Tolemac”), by and through their undersigned attorney, and as and for their complaint against defendants, ANNE BRENSLEY (“Ms. Brensley”), BOSTON FINANCIAL TRUST ADVISORS, LLC (“BFT”), ERIC FEDEWA (“Mr. Fedewa”), and SAFE IRA PARTNERS, LLC (“Safe IRA”), state the following: Parties 1 Mr. McGehee is a Florida resident, is the President and Treasurer of Tolemac, and is the majority shareholder of Tolemac. 2. Tolemac is a Florida corporation with its principal place of business located at 7520 State Road 13 N, St Augustine, FL 32092. Tolemac is a privately owned corporation that purchases, develops, and leases real property. 3 Ms. Brensley is a Massachusetts resident, is the Manager of BFT, and is the sole Page 1 of 60 FILED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 11/16/2016 12:20:44 PM owner of BFT. Ms. Brensley is subject to the jurisdiction of this court because at all times material to this complaint: A Ms. Brensley was operating, conducting, engaging in, or carrying on a business venture in Jacksonville, Duval County, Florida; B Ms. Brensley committed a tortious act or acts in Jacksonville, Duval County, Florida; or Cc Ms. Brensley caused injury to persons or property within Jacksonville, Duval County, Florida, arising out of an act or omission by Ms. Brensley outside Florida and at or about the time of the injury Ms. Brensley was engaged in solicitation or service activities in Jacksonville, Duval County, Florida. 4 BFT is a Massachusetts limited liability company with its principal place of business located at 189 Plain Road, Wayland, MA 01778. BFT is a privately owned limited liability company that advertises offering alternative investment options specifically in real estate, venture capital, and film financing, and portfolio oversight thru wealth advisory and investment advisory services for high net-worth individuals and family offices, and its services include business succession planning, investment management, trust administration, trusteeship, estate planning, wealth planning, and tax planning. BFT is subject to the jurisdiction of this court because at all times material to this complaint: A BFT was operating, conducting, engaging in, or carrying on a business venture in Jacksonville, Duval County, Florida; B BFT committed a tortious act or acts in Jacksonville, Duval County, Florida; or Cc. BFT caused injury to persons or property within Jacksonville, Duval Page 2 of 60 County, Florida, arising out of an act or omission by BFT outside Florida and at or about the time of the injury BFT was engaged in solicitation or service activities in Jacksonville, Duval County, Florida. 5 Mr. Fedewa is a Virginia resident, is an employee and agent of Safe IRA. Mr. Fedewa is subject to the jurisdiction of this court because at all times material to this complaint: A Mr. Fedewa was operating, conducting, engaging in, or carrying on a business venture in Jacksonville, Duval County, Florida; B Mr. Fedewa committed a tortious act or acts in Jacksonville, Duval County, Florida; or Cc Mr. Fedewa caused injury to persons or property within Jacksonville, Duval County, Florida, arising out of an act or omission by Mr. Fedewa outside Florida and at or about the time of the injury Mr. Fedewa was engaged in solicitation or service activities in Jacksonville, Duval County, Florida. 6 Safe IRA is a Florida limited liability company with its principal place of business located at 1219 S. East Avenue, Suite #304, Sarasota, Florida 34239. Safe IRA is a privately owned limited liability company that advertises a focus on buying undervalued assets and investing in foreclosures, tax deeds, tax liens and other safe and secured asset classes. On information and belief, Safe IRA also pools its investors funds and provides mortgage loans from these funds to third parties. Safe IRA is subject to the jurisdiction of this court because at all times material to this complaint: A Safe IRA was operating, conducting, engaging in, or carrying on a business venture in Jacksonville, Duval County, Florida; B Safe IRA committed a tortious act or acts in Jacksonville, Duval County, Page 3 of 60 Florida; or Cc. Safe IRA caused injury to persons or property within Jacksonville, Duval County, Florida, arising out of an act or omission by Safe IRA outside Florida and at or about the time of the injury Safe IRA was engaged in solicitation or service activities in Jacksonville, Duval County, Florida. Jurisdiction and Venue 7 This court has jurisdiction over this matter because the Plaintiffs’ damages in controversy exceeds the sum of $15,000.00, exclusive of interest, costs, and attorney’s fees. 8. This court is a proper venue for this matter because a substantial part of the events or omissions giving rise to these claims occurred in Jacksonville, Duval County, Florida and the property that is the subject of this action is situated in Jacksonville, Duval County, Florida. General Allegation: 9 Tolemac owns real property located at 3535 St. Johns Bluff Road South, Jacksonville, Florida 32224 (“Property”) more particularly described as follows: “A PART OF SECTION 31, TOWNSHIP 2 SOUTH, RANGE 28 EAST, DUVAL COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: FOR A POINT OF REFERENCE COMMENCE AT THE INTERSECTION OF THE EASTERLY LINE OF SECTION 31 WITH THE SOUTHERLY RIGHT OF WAY LINE OF BEACH BOULEVARD, STATE ROAD 212 (A 200 FOOT RIGHT OF WAY AS NOW ESTABLISHED); THENCE SOUTH 89018'20" WEST ALONG SAID SOUTHERLY RIGHT OF WAY LINE, A DISTANCE OF 785.93 FEET TO THE NORTHEASTERLY CORNER OF THOSE LANDS DESCRIBED IN OFFICIAL RECORDS VOLUME 3424, PAGE 723 OF THE CURRENT PUBLIC RECORDS OF SAID COUNTY; THENCE SOUTH 02030'53" WEST, ALONG THE EASTERLY LINE OF SAID LANDS, A DISTANCE OF 200.31 FEET; THENCE SOUTH 89018'20" WEST, ALONG THE SOUTHERLY LINE OF SAID LANDS, A DISTANCE OF 189.96 FEET TO THE EASTERLY RIGHT OF WAY LINE OF ST. JOHNS BLUFF ROAD (A 200 FOOT RIGHT OF WAY AS NOW ESTABLISHED); THENCE SOUTH 03002'10" WEST, ALONG SAID EASTERLY RIGHT OF WAY LINE, A DISTANCE OF 212,43 FEET; THENCE CONTINUE ALONG SAID EASTERLY RIGHT OF WAY LINE SOUTH Page 4 of 60 00041'40" EAST, A DISTANCE OF 312.87 FEET TO THE POINT OF BEGINNING; THENCE NORTH 89018'20" EAST, A DISTANCE OF 224.30 FEET; THENCE SOUTH 00041'40 11 EAST, A DISTANCE OF 320.00 FEET; THENCE SOUTH 89018 1 20" WEST, A DISTANCE OF 220.00 FFET TO A POINT ON SAID EASTERLY RIGHT OF WAY LINE OF ST. JOHNS BLUFF ROAD, SAID POINT LYING ON A CURVE CONCAVE EASTERLY AND HAVING A RADIUS OF 5629.58 FEET; THENCE NORTHWESTERLY ALONG SAID RIGHT OF WAY LINE AND ALONG THE ARC OF SAID CURVE, A DISTANCE OF 220.01 FEET, MAKING A CENTRAL ANGLE OF 02014'21" AND HAVING A CHORD BEARING OF NORTH 01048'S1" WEST AND A CHORD DISTANCE OF 219,99 FEET TO THE POINT OF TANGENCY OF SAID CURVE; THENCE CONTINUE ALONG SAID EASTERLY RIGHT OF WAY LINE, NORTH 00041'40" WEST, A DISTANCE OF 100.09 FEET TO THE POINT OF BEGINNING.” 10. On, or around, November 18, 2014, Tolemac obtained a mortgage loan secured by the Property from Velocity Mortgage Capital, Inc. Mr. McGehee provided a personal guarantee of Tolemac’s payment and performance of its obligations pursuant to the mortgage and note. 11. On, or around, December 11, 2015, Tolemac and Mr. McGehee contacted BFT concerning Tolemac’s desire to refinance Tolemac’s existing mortgage secured by the Property and inquired of BFT whether it was capable of and interested in refinancing Tolemac’s existing mortgage. 12. On December 11, 2015, BFT, by and through its Managing Member Ms. Brensely, represented that it was capable of and interested in refinancing Tolemac’s existing mortgage secured by the Property and indicated it anticipated closing the proposed refinance loan within fourteen to twenty-one days. See letter dated December 11, 2015 from Ms. Brensely to Tolemac attached hereto as Exhibit A and incorporated herein by reference for all purposes. 13. BFT, by and through Ms. Brensely, demanded, and Tolemac paid via wire transfer to BFT’s designated bank account, $5,000.00 as an engagement fee to be applied to an $11,000.00 commitment fee BFT stated it would charge upon its commitment to fund and close the refinance loan. See Exhibit A. Page 5 of 60 14. BFT, by and through its Managing Member Ms. Brensely, subsequently brokered the refinance loan to Safe IRA. 15. On, or around January 25, 2016, Safe IRA, by and through its employee and agent Mr. Fedewa, provided a term sheet to Mr. McGehee. The term sheet provided in relevant part that: A Mr. McGehee would be the borrower and guarantor of the refinance loan; B Mr. McGehee would pay a 3% origination fee to Safe IRA; Cc Mr. McGehee would pay a 2% broker fee to be split with 1% to be paid to Joseph Berlin and 1% to BFT; and D. Mr. McGehee would pay an additional $5,000.00 “loan cost deposit” to Safe IRA for legal and filing costs, fees, and expenses for the refinance loan upon confirmation of an impending closing of the loan. See term sheet attached hereto as Exhibit B and incorporated herein by reference for all purposes. 16. On February 15, 2016, BFT, by and through its Managing Member Ms. Brensely, provided Mr. McGehee with a commitment letter that indicated the closing process had begun, provided a targeted closing date of February 23, 2016, and requested that Mr. McGehee pay the additional $5,000.00 loan cost deposit to Safe IRA based on the impending closing of the loan. See commitment letter dated February 15, 2016, attached hereto as Exhibit C and incorporated herein by reference for all purposes. 17. On February 18, 2016, Mr. McGehee paid the additional $5,000.00 loan cost deposit to Safe IRA via wire transfer to Safe IRA’s designated account based upon Ms. Brensely’s representations on behalf of BFT and Mr. Fedewa’s representation on behalf of Safe IRA that the closing of the loan was imminent; however, BFT and Safe IRA thereafter refused to fund and close the loan. Page 6 of 60 18. BFT, by and through Ms. Brensely, and Safe IRA, by and through Mr. Fedewa, initially indicated the loan was not closed because a real estate broker that provided a broker’s price opinion concerning the Property rescinded his opinion when Safe IRA personnel confronted him concerning his valuations and accused him of improprieties, including allegedly providing inaccurate and unreliable valuation information within his opinion. 19, Safe IRA, by and through Mr. Fedewa, then requested that Mr. McGehee pay an additional $5,000.00 for an independent third party appraisal of the Property by a certified appraiser approved by Safe IRA. 20. Mr. McGehee paid $5,000.00 for an independent third party appraiser, pre- approved by Mr. Fedewa on behalf of Safe IRA, to conduct an expedited appraisal of the Property. Mr. McGehee only did so after obtaining confirmation from Mr. Fedewa, on behalf of Safe IRA, and Ms. Brensely, on behalf of BFT, that Safe IRA and BFT would reimburse Mr. McGehee for the additional cost of the expedited appraisal should the loan not close. 21. After receiving the appraisal of the Property, Safe IRA and BFT refused to fund and close the loan. 22. Tolemac and Mr. McGehee have repeatedly requested and demanded that BFT and Safe IRA refund the $5,000.00 engagement fee paid to BFT, refund the $5,000.00 loan cost deposit paid to Safe IRA, and reimburse plaintiffs for the cost of the expedited appraisal of the Property. 23. BFT and Safe IRA have refused to refund the $5,000.00 engagement fee paid to BFT, refused to refund the $5,000.00 loan cost deposit paid to Safe IRA, and refused to reimburse plaintiffs for the cost of the expedited appraisal of the Property. 24. In this action plaintiffs assert claims of civil theft against BFT (count I) and Safe IRA (count XVI), conversion against BFT (count II) and Safe IRA (count XVID), fraud against Page 7 of 60 Ms. Brensely (counts III and V), BFT (counts IV and VI), Mr. Fedewa (counts XVIII and XX), and Safe IRA (counts XIX and XXI), violations of Section 494, Florida Statutes against Ms. Brensely (counts VII and IX), BFT (counts VIII and X), Mr. Fedewa (counts XXII and XXIV), and Safe IRA (counts XXIII and XXV), violations of Section 687, Florida Statutes against Ms. Brensely (counts XI and XIII), BFT (counts XII and XIV), Mr. Fedewa (counts XXVI and XXVIII), and Safe IRA (counts XXVII and XXIX), and breach of contract against BFT (count XV) and Safe IRA (count XXX). Count I — Tolemac’s Civil Theft Claim against BFT 25. Plaintiffs repeat and reallege paragraphs 1 through 24 above as fully set forth and realleged herein. 26. This is an action by Tolemac for civil theft against BFT. 27. On, or before, December 11, 2015, Tolemac requested that BFT approve and fund a refinance of its existing mortgage secured by the Property. See Exhibit A. 28. BFT required Tolemac to pay an engagement fee of $5,000.00 upon retaining BFT’s services to be applied to an $11,000.00 commitment fee it would charge separately and in addition to a loan origination fee of 3% and lender fee of 2% upon commitment to fund the refinance loan. See Exhibit A. 29. On December 18, 2015, Tolemac paid BFT the $5,000.00 engagement fee in the form of a $5,000.00 wire payment to BFT’s designated bank account per Ms. Brensely’s instructions. 30. BFT never indicated to Tolemac prior to its payment of the $5,000.00 engagement fee that such fee was non-refundable or would be retained regardless of whether the loan was funded and closed. Page 8 of 60 31. BFT accepted the $5,000.00 engagement fee and used these funds for its own benefit despite knowing it did not have an ability to fund and close the loan. 32. BFT accepted the $5,000.00 engagement fee and used these funds for its own benefit despite knowing it was not a licensed Florida mortgage lender or Florida mortgage broker. 33. Defendant BFT accepted the $5,000.00 engagement fee and used these funds for its own benefit despite knowing the loan had not and was not going to close. 34. The $5,000.00 engagement fee was to be used solely as a deposit to be applied to the listed commitment fee upon BFT’s commitment to fund the proposed loan. 35. Tolemac requested BFT refund the engagement fee when BFT revealed it would not be the lender for the loan and brokered the loan to Safe IRA; however, BFT refused to do so at that time. 36. Tolemac requested BFT refund the engagement fee when BFT and Safe IRA failed to fund and close the loan on February 23, 2016; however, BFT refused to do so at that time. 37. Tolemac has repeatedly requested BFT refund the engagement fee after BFT and Safe IRA failed to fund and close the loan after receiving the property appraisal of the Property; however, BFT has repeatedly refused to do so. 38. BFT knowingly obtained funds from Tolemac with the criminal intent to permanently deprive Tolemac of the right to and benefits of such funds and to appropriate such funds to its own use and benefit. 39. On August 11, 2016, Tolemac, through its undersigned attorney, sent a statutory demand letter in accordance with Section 772.11, Florida Statutes to BFT demanding that BFT tepay three times the value of funds it stole from Tolemac. See demand letter attached hereto as Exhibit D and incorporated herein by reference for all purposes. Page 9 of 60 40. Tolemac has retained the services of the undersigned attorney and is required to pay a reasonable fee for his services. Al. Section 772.11, Florida Statutes provides statutory authority for an award of Tolemac’s reasonable attorney’s fees and costs incurred in successfully pursuing this claim against BFT. WHEREFORE, Tolemac demands judgment against BFT for treble damages pursuant to Section 772.11, pre-judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this honorable court deems just and proper. Count II — Tolemac’s Claim of Conversion against BFT 42. Plaintiffs repeat and reallege paragraphs 1 through 41 as fully set forth herein. 43. This is an action by Tolemac for conversion against BFT. 44, On, or about December 18, 2015, BFT converted to its own use $5,000.00, that was then the property of Tolemac, which Tolemac deposited with BFT only to be applied to a commitment fee if and when BFT committed to fund the refinance of Tolemac’s existing mortgage secured by the Property. 45. Tolemac has demanded BFT refund the $5,000.00 and BFT has repeatedly refused to do so. WHEREFORE Tolemac demands judgment against BFT for damages, pre-judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this honorable court deems just and proper. Count III — Tolemac’s Claim of Fraud against Ms. Brensely 46. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein. 47. This is an action by Tolemac for fraud against Ms. Brensely. Page 10 of 60 48. Ms. Brensely, as the Managing Member of BFT, intentionally made the following false statements concerning material facts to Tolemac: A BFT was licensed to fund and close a mortgage loan as a lender; B. BFT was licensed to broker the mortgage loan; Cc BFT had available funds committed and set aside to fund and close the mortgage loan; The $5,000.00 engagement fee was a down payment toward a commitment fee; BFT was beginning the closing process for the refinance loan as of February 15, 2016; F. The $5,000 loan cost deposit paid to Safe IRA was to cover all anticipated costs of closing the loan; and G BFT would refund Tolemac’s cost of the expedited appraisal of the Property, up to the amount of the engagement fee, less any reimbursement for such cost made by Safe IRA in the event that the refinance loan did not close. 49. Ms. Brensely knew the statements where false at the time she made the statements. 50. Ms. Brensely intended that Tolemac would rely on these false statements and deposit the engagement fee with BFT and the loan cost deposit with Safe IRA as a direct result of its reliance on these statements. Sl. Tolemac did in fact rely on Ms. Brensely’s false statements and deposited the engagement fee with BFT, the loan cost deposit with Safe IRA, and paid for the expedited appraisal of the property as direct result of its reliance on these statements. 52. Tolemac has incurred actual damages in excess of $15,000.00 as a result of its Page 11 of 60 teliance on Ms. Brensely’s false statements. WHEREFORE, Tolemac demands judgment against Ms. Brensely for damages, pre- judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this honorable court deems just and proper. Count IV — Tolemac’s Claim of Fraud against BFT 53. Plaintiffs repeat and reallege paragraphs 46 through 52 as fully set forth herein. 54. This is an action by Tolemac for fraud against BFT. 55. At all times material to this complaint Ms. Brensely was an agent of BFT and was acting within the scope of her employment and representative capacity as the Managing Member of BFT. 56. At all times material to this complaint Ms. Brensely was employed to act for BFT and her actions were controlled by BFT and subject to BFT’s right of control. 357. Ms. Brensely was performing services that she was employed to perform for BFT when she perpetrated the fraud upon Tolemac. 58. Ms. Brensely was acting, at least in part, because of a desire to serve BFT and was doing something that was reasonably incidental to her employment with BFT or reasonably forseeable and reasonably to be expected of persons similarly employed when she perpretrated the fraud upon Tolemac. 59. Ms. Brensely was an apparent agent of BFT and was acting within the scope of her apparent authority at the time and place of the incident in this case. 60. Ms. Brensely by her words or conduct caused or allowed Tolemac to believe that Ms. Brensely was an agent of and had authority to act for BFT and Tolemac justifiably relied upon that belief in dealing with Ms. Brensely as the agent of BFT. Page 12 of 60 61. BFT is responsible for the fraud Ms. Brensely perpetrated upon Tolemac during the course of her employment for BFT. 62. BFT is responsible for the fraud Ms. Brensely perpetrated upon Tolemac as an apparent agent of BFT while acting within the scope of her apparent authority on behalf of BFT. WHEREFORE, Tolemac demands judgment against BFT for damages, pre-judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this honorable court deems just and proper. Count V— Mr. McGehee’s Claim of Fraud against Ms. Brensely 63. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein. 64. This is an action by Mr. McGehee for fraud against Ms. Brensely. 65. Ms. Brensely, as the Managing Member of BFT, intentionally made the following false statements concerning material facts to Mr. McGehee: A BFT was licensed to fund and close a mortgage loan as a lender; B. BFT was licensed to broker the mortgage loan; Cc BFT had available funds committed and set aside to fund and close the mortgage loan; D. The $5,000.00 engagement fee was a down payment toward the commitment fee; E. BFT was beginning the closing process for the refinance loan as of February 15, 2016; F. The $5,000 loan cost deposit paid to Safe IRA was to cover all anticipated costs of closing the loan; and G BFT would refund Mr. McGehee’s cost of the expedited appraisal of the Page 13 of 60 Property, up to the amount of the engagement fee, less any reimbursement for such cost made by Safe IRA in the event that the refinance loan did not close. 66. Ms. Brensely knew the statements where false at the time she made the statements. 67. Ms. Brensely intended that Mr. McGehee would rely on these false statements and deposit the engagement fee with BFT, the loan cost deposit with Safe IRA, and pay for an expedited appraisal of the Property as a direct result of his reliance on these statements. 68. Mr. McGehee did in fact rely on Ms. Brensely’s false statements and deposited the engagement fee with BFT, the loan cost deposit with Safe IRA, and paid for the expedited appraisal of the property as direct result of his reliance on these statements. 69. Mr. McGehee has incurred actual damages in excess of $15,000.00 as a result of his reliance on Ms. Brensely’s false statements. WHEREFORE, Mr. McGehee demands judgment against Ms. Brensley for damages, pre- judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this honorable court deems just and proper. Count VI — Mr. McGehee’s Claim of Fraud against BFT 70. Plaintiffs repeat and reallege paragraphs 63 through 69 as fully set forth herein. 71. This is an action by Mr. McGehee for fraud against BFT. 72. At all times material to this complaint Ms. Brensely was an agent of BFT and was acting within the scope of her employment and representative capacity as the Managing Member of BFT. 73. At all times material to this complaint Ms. Brensely was employed to act for BFT and her actions were controlled by BFT and subject to BFT’s right of control. 7A. Ms. Brensely was performing services that she was employed to perform for BFT Page 14 of 60 when she perpetrated the fraud upon Mr. McGehee. 75. Ms. Brensely was acting, at least in part, because of a desire to serve BFT and was doing something that was reasonably incidental to her employment with BFT or reasonably forseeable and reasonably to be expected of persons similarly employed when she perpretrated the fraud upon Mr. McGehee. 76. Ms. Brensely was an apparent agent of BFT and was acting within the scope of her apparent authority at the time and place of the incident in this case. 77. Ms. Brensely by her words or conduct caused or allowed Mr. McGehee to believe that Ms. Brensely was an agent of and had authority to act for BFT, and Mr. McGehee justifiably relied upon that belief in dealing with Ms. Brensely as the agent of BFT. 78. BFT is responsible for the fraud Ms. Brensely perpetrated upon Mr. McGehee during the course of her employment for BFT. 79. BFT is responsible for the fraud Ms. Brensely perpetrated upon Mr. McGehee as an apparent agent of BFT while acting within the scope of her apparent authority on behalf of BFT. WHEREFORE, Mr. McGehee demands judgment against BFT for damages, pre-judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this honorable court deems just and proper. Count VII —Tolemac’s Section 494.0019(1) Claim against Ms. Brensely 80. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein. 81. This is an action by Tolemac against Ms. Brensely for damages pursuant to Section 494.0019(1), Florida Statutes. 82. Ms. Brensely, in her representative capacity of BFT, solicited or offered to solicit a mortgage loan, accepted or offered to accept an application for a mortgage loan, and negotiated Page 15 of 60 or offered to negotiate the terms or conditions of a new mortgage loan on behalf of Tolemac concerning the Property. 83. Ms. Brensely, in her representative capacity of BFT, made a commitment to advance funds to Tolemac as an applicant for a mortgage loan and for compensation or gain offered to sell the mortgage loan to Tolemac to a non-institutional investor or investors. 84, During the course of Tolemac’s dealings with Ms. Brensely, Ms. Brensely acted as a loan originator in the state of Florida without a current active license issued pursuant to Section 494.00312, Florida Statutes. 85. During the course of Tolemac’s dealings with Ms. Brensely, Ms. Brensely acted as a mortgage broker in the state of Florida without a current active license issued pursuant to Section 494.00321, Florida Statutes. 86. During the course of Tolemac’s dealings with Ms. Brensely, Ms. Brensely acted as a mortgage lender in the state of Florida without a current active license issued pursuant to Section 494.00611, Florida Statutes. 87. Ms. Brensely has violated Chapter 494, Florida Statutes during her interactions with Tolemac as follows: A Ms. Brensely acted as a loan originator in this state without a current active license issued by the Florida Office of Financial Regulation; B Ms. Brensely acted as a mortgage broker in this state without a current active license issued by the Florida Office of Financial Regulation; Cc Ms. Brensely acted as a mortgage lender in this state without a current active license issued by the Florida Office of Financial Regulation; D. Ms. Brensely knowingly or willingly employed a device, scheme, or artifice Page 16 of 60 to defraud Tolemac of its money; E. Ms. Brensely engaged in a transaction, practice, or course of business which operated as a fraud upon Tolemac in connection with the sale of a mortgage loan; F. Ms. Brensely obtained Tolemac’s property by fraud, willful misrepresentation of a future act, or false promise; G Ms. Brensely received or paid a fee or commission in a mortgage loan transaction to a person or entity other than a licensed mortgage broker or mortgage lender; H. Ms. Brensely failed to immediately, upon receipt, place the $5,000.00 engagement fee into a segregated account with a financial institution located in Florida insured by the federal government and hold such funds in trust for the Tolemac in such account until disbursement; I Ms. Brensely charged and retained the $5,000.00 engagement fee, which was a prohibited fee in violation of Section 494.0042, Florida Statutes, because such fee was not disclosed as a non-refundable application fee and such fee exceeded the maximum $250.00 loan origination fee that may have been charged based on the loan not funding; and J. Ms. Brensely failed to refund the engagement fee in violation of Sections 494.007(3) and 494.0071, Florida Statutes. 88. Ms. Brensely’s actions in violation of Chapter 494, Florida Statutes subjects every person making the transaction and every licensee, director, or officer who participated in making the transaction jointly and severally liable to every party to the transaction in an action for damages incurred by the party or parties. 89. Tolemac has incurred damages in excess of $15,000.00 as a direct result of Ms. Brensely’s actions in violation of Chapter 494, Florida Statutes. Page 17 of 60 90. Tolemac has retained the services of the undersigned attorney and is required to pay him a reasonable fee for his services. Chapter 494, Florida Statutes authorizes an award of Tolemac’s attorney’s fees and costs incurred in this action. WHEREFORE, Tolemac demands judgment against Ms. Brensley for damages, pre- judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this honorable court deems just and proper. Count VIII — Tolemac’s Section 494.0019(1) Claim against BFT 91. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein. 92. This is an action by Tolemac against BFT for damages pursuant to Section 494.0019(1), Florida Statutes. 93. BFT, by and through Ms. Brensely acting in her representative capacity of BFT, solicited or offered to solicit a mortgage loan, accepted or offered to accept an application for a mortgage loan, and negotiated or offered to negotiate the terms or conditions of a new mortgage loan on behalf of Tolemac concerning the Property. 94, BFT, by and through Ms. Brensely acting in her representative capacity of BFT, made a commitment to advance funds to Tolemac as an applicant for a mortgage loan and for compensation or gain offered to sell the mortgage loan to Tolemac to a non-institutional investor or investors. 95. During the course of Tolemac’s dealings with BFT, by and through Ms. Brensely acting in her representative capacity of BFT, BFT acted as a loan originator in the state of Florida without a current active license issued pursuant to Section 494.00312, Florida Statutes. 96. During the course of Tolemac’s dealings with BFT, by and through Ms. Brensely acting in her representative capacity of BFT, BFT acted as a mortgage broker in the state of Florida Page 18 of 60 without a current active license issued pursuant to Section 494.00321, Florida Statutes. 97. During the course of Tolemac’s dealings with BFT, by and through Ms. Brensely acting in her representative capacity of BFT, BFT acted as a mortgage lender in the state of Florida without a current active license issued pursuant to Section 494.00611, Florida Statutes. 98. BFT has violated Chapter 494, Florida Statutes during its interactions with Tolemac as follows: A BFT acted as a loan originator in this state without a current active license issued by the Florida Office of Financial Regulation; B BFT acted as a mortgage broker in this state without a current active license issued by the Florida Office of Financial Regulation; Cc BFT acted as a mortgage lender in this state without a current active license issued by the Florida Office of Financial Regulation; D. BFT knowingly or willingly employed a device, scheme, or artifice to defraud Tolemac of its money; E. BFT engaged in a transaction, practice, or course of business which operated as a fraud upon Tolemac in connection with the sale of a mortgage loan; F. BFT obtained Tolemac’s property by fraud, willful misrepresentation of a future act, or false promise; G BFT received or paid a fee or commission in a mortgage loan transaction to a person or entity other than a licensed mortgage broker or mortgage lender; H. BFT failed to immediately, upon receipt, place the $5,000.00 engagement fee into a segregated account with a financial institution located in Florida insured by the federal government and hold such funds in trust for Tolemac in such account until disbursement; Page 19 of 60 I BFT charged and retained the $5,000.00 engagement fee, which was a prohibited fee in violation of Section 494.0042, Florida Statutes, because such fee was not disclosed as a non-refundable application fee and such fee exceeded the maximum $250.00 loan origination fee that may have been charged based on the loan not funding; and J. BFT failed to refund the engagement fee in violation of Sections 494.007(3) and 494.0071, Florida Statutes. 99. BFT’s actions in violation of Chapter 494, Florida Statutes subjects every person making the transaction and every licensee, director, or officer who participated in making the transaction jointly and severally liable to every party to the transaction in an action for damages incurred by the party or parties. 100. Tolemac has incurred damages in excess of $15,000.00 as a direct result of BFT’s actions in violation of Chapter 494, Florida Statutes. 101. Tolemac has retained the services of the undersigned attorney and is required to pay him a reasonable fee for his services. Chapter 494, Florida Statutes authorizes an award of Tolemac’s attorney’s fees and cost incurred in this action. WHEREFORE, Tolemac demands judgment against BFT for damages, pre-judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this honorable court deems just and proper. Count IX — Mr. McGehee’s Section 494.0019(1) Claim against Ms. Brensely 102. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein. 103. This is an action by Mr. McGehee against Ms. Brensely for damages pursuant to Section 494.0019(1), Florida Statutes. 104, Ms. Brensely, in her representative capacity of BFT, solicited or offered to solicit Page 20 of 60 a mortgage loan, accepted or offered to accept an application for a mortgage loan, and negotiated or offered to negotiate the terms or conditions of a new mortgage loan on behalf of Mr. McGehee concerning the Property. 105. Ms. Brensely, in her representative capacity of BFT, made a commitment to advance funds to Mr. McGehee as an applicant for a mortgage loan and for compensation or gain offered to sell the mortgage loan to Mr. McGehee to a non-institutional investor or investors. 106. During the course of Mr. McGehee’s dealings with Ms. Brensely, Ms. Brensely acted as a loan originator in the state of Florida without a current active license issued pursuant to Section 494.00312, Florida Statutes. 107. During the course of Mr. McGehee’s dealings with Ms. Brensely, Ms. Brensely acted as a mortgage broker in the state of Florida without a current active license issued pursuant to Section 494.00321, Florida Statutes. 108. During the course of Mr. McGehee’s dealings with Ms. Brensely, Ms. Brensely acted as a mortgage lender in the state of Florida without a current active license issued pursuant to Section 494.00611, Florida Statutes. 109. Ms. Brensely has violated Chapter 494, Florida Statutes during her interactions with Mr. McGehee as follows: A Ms. Brensely acted as a loan originator in this state without a current active license issued by the Florida Office of Financial Regulation; B Ms. Brensely acted as a mortgage broker in this state without a current active license issued by the Florida Office of Financial Regulation; Cc Ms. Brensely acted as a mortgage lender in this state without a current active license issued by the Florida Office of Financial Regulation; Page 21 of 60 D. Ms. Brensely knowingly or willingly employed a device, scheme, or artifice to defraud Mr. McGehee of his money; E. Ms. Brensely engaged in a transaction, practice, or course of business which operated as a fraud upon Mr. McGehee in connection with the sale of a mortgage loan; F. Ms. Brensely obtained Mr. McGehee’s property by fraud, willful misrepresentation of a future act, or false promise; G Ms. Brensely received or paid a fee or commission in a mortgage loan transaction to a person or entity other than a licensed mortgage broker or mortgage lender; H. Ms. Brensely failed to immediately, upon receipt, place the $5,000.00 engagement fee into a segregated account with a financial institution located in Florida insured by the federal government and hold such funds in trust for Mr. McGehee in such account until disbursement; I Ms. Brensely charged and retained the $5,000.00 engagement fee, which was a prohibited fee in violation of Section 494.0042, Florida Statutes, because such fee was not disclosed as a non-refundable application fee and such fee exceeded the maximum $250.00 loan origination fee that may have been charged based on the loan not funding; and J Ms. Brensely failed to refund the engagement fee in violation of Sections 494.007(3) and 494.0071, Florida Statutes. 110. Ms. Brensely’s actions in violation of Chapter 494, Florida Statutes subjects every person making the transaction and every licensee, director, or officer who participated in making the transaction jointly and severally liable to every party to the transaction in an action for damages incurred by the party or parties. 1. Mr. McGehee has incurred damages in excess of $15,000.00 as a direct result of Page 22 of 60 Ms. Brensely’s actions in violation of Chapter 494, Florida Statutes. 112, Mr. McGehee has retained the services of the undersigned attorney and is required to pay him a reasonable fee for his services. Chapter 494, Florida Statutes authorizes an award of Mr. McGehee’s attorney’s fees and costs incurred in this action. WHEREFORE, Mr. McGehee demands judgment against Ms. Brensley for damages, pre- judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this honorable court deems just and proper. Count X — Mr. McGehee’s Section 494.0019(1) Claim against BFT 113. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein. 114, This is an action by Mr. McGehee against BFT for damages pursuant to Section 494.0019(1), Florida Statutes. 115. BFT, by and through Ms. Brensely acting in her representative capacity of BFT, solicited or offered to solicit a mortgage loan, accepted or offered to accept an application for a mortgage loan, and negotiated or offered to negotiate the terms or conditions of a new mortgage loan on behalf of Mr. McGehee concerning the Property. 116. BFT, by and through Ms. Brensely acting in her representative capacity of BFT, made a commitment to advance funds to Mr. McGehee as an applicant for a mortgage loan and for compensation or gain offered to sell the mortgage loan to Mr. McGehee to a non-institutional investor or investors. 117. During the course of Mr. McGehee’s dealings with BFT, by and through Ms. Brensely acting in her representative capacity of BFT, BFT acted as a loan originator in the state of Florida without a current active license issued pursuant to Section 494.00312, Florida Statutes. 118. During the course of Mr. McGehee’s dealings with BFT, by and through Ms. Page 23 of 60 Brensely acting in her representative capacity of BFT, BFT acted as a mortgage broker in the state of Florida without a current active license issued pursuant to Section 494.00321, Florida Statutes. 119. During the course of Mr. McGehee’s dealings with BFT, by and through Ms. Brensely acting in her representative capacity of BFT, BFT acted as a mortgage lender in the state of Florida without a current active license issued pursuant to Section 494.00611, Florida Statutes. 120. BFT has violated Chapter 494, Florida Statutes during its interactions with Mr. McGehee as follows: A BFT acted as a loan originator in this state without a current active license issued by the Florida Office of Financial Regulation; B BFT acted as a mortgage broker in this state without a current active license issued by the Florida Office of Financial Regulation; Cc BFT acted as a mortgage lender in this state without a current active license issued by the Florida Office of Financial Regulation; D. BFT knowingly or willingly employed a device, scheme, or artifice to defraud Mr. McGehee of his money; E. BFT engaged in a transaction, practice, or course of business which operated as a fraud upon Mr. McGehee in connection with the sale of a mortgage loan; F. BFT obtained Mr. McGehee’s property by fraud, willful misrepresentation of a future act, or false promise; G BFT received or paid a fee or commission in a mortgage loan transaction to a person or entity other than a licensed mortgage broker or mortgage lender; H. BFT failed to immediately, upon receipt, place the $5,000.00 engagement fee into a segregated account with a financial institution located in Florida insured by the federal Page 24 of 60 government and hold such funds in trust for Mr. McGehee in such account until disbursement; I BFT charged and retained the $5,000.00 engagement fee, which was a prohibited fee in violation of Section 494.0042, Florida Statutes, because such fee was not disclosed as a non-refundable application fee and such fee exceeded the maximum $250.00 loan origination fee that may have been charged based on the loan not funding; and J BFT failed to refund the engagement fee in violation of Sections 494.007(3) and 494.0071, Florida Statutes. 121, BFT’s actions in violation of Chapter 494, Florida Statutes subjects every person making the transaction and every licensee, director, or officer who participated in making the transaction jointly and severally liable to every party to the transaction in an action for damages incurred by the party or parties. 122. Mr. McGehee has incurred damages in excess of $15,000.00 as a direct result of BFT’s actions in violation of Chapter 494, Florida Statutes. 123. Mr. McGehee has retained the services of the undersigned attorney and is required to pay him a reasonable fee for his services. Chapter 494, Florida Statutes authorizes an award of Mr. McGehee’s attorney’s fees and cost incurred in this action. WHEREFORE, Mr. McGehee demands judgment against BFT for damages, pre-judgment interest, post-judgment interest, attorney’s fees, costs, and such other and further relief as this honorable court deems just and proper. Count XI —Tolemac’s Section 687 Claim against Ms. Brensely 124. Plaintiffs repeat and reallege paragraphs 1 through 24 as fully set forth herein. 125. This is an action by Tolemac against Ms. Brensely for damages pursuant to Section 687.147(1), Florida Statutes. Page 25 of 60 126. Ms. Brensely, acting in her representative capacity of BFT, for and in expectation of consideration offered to arrange and attempted to arrange a loan of money for Tolemac. 127. Ms. Brensely, acting in her representative capacity of BFT, for and in expectation of consideration assisted or advised Tolemac in obtaining or attempting to obtain a loan