IN THE SUPREME COURT OF FLORIDA (Before a Referee) The Florida Bar File No ,076(11J) REPORT OF REFEREE

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1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, vs. FRANCIS X. SANTANA, Supreme Court Case No. SC The Florida Bar File No ,076(11J) Respondent. / 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, trial of this cause 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. During the course of these proceedings, a status conference was held on March 17, 2011, and a final hearing concerning discipline only was held on June 13, The following attorneys appeared as counsel for the parties: On Behalf of The Florida Bar: Thomas Allen Kroeger The Florida Bar 444 Brickell Avenue, Suite M-100 Miami, Florida 33131

2 On Behalf of the Respondent: Francis X. Santana, Pro se Township of Boquete Chiriqui Province Republic of Panama II. FINDINGS OF FACT AND CONCLUSIONS OF LAW: A. Jurisdictional Statement: Respondent is and was at all times material herein a member of The Florida Bar, albeit in retired status as of May 4, 2011, and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida. B. Narrative Summary of Case: 1. On or about June 10, 2003, Respondent served as the settlement agent for a real estate transaction between Maria Brandvold, Seller-Mortgagee, and Alejandro M. Lugo, Buyer-Mortgagor, and was to prepare all necessary documentation to execute the sale for property located at 548 S.W. 88 th Place East, Miami, Florida In exchange for preparing, filing and recording a Mortgage Deed, Mortgage Note and Warranty Deed on behalf of Brandvold, Respondent charged Brandvold $ in settlement charges which were to be held in Respondent s trust account. On or about September 10, 2003, Respondent recorded the Warranty Deed, but failed to record either the Mortgage Deed or Mortgage Note executed by Lugo, Buyer- Mortgagor, in favor of Brandvold, Seller-Mortgagee. 2

3 2. Subsequently, on or about November 15, 2005, Lugo sold the property to a Nelson Izquierdo, who executed a mortgage in favor of New Century Mortgage Corporation. The Warranty Deed and Mortgage Note were properly recorded on December 1, As a result of Respondent s failure to record the Mortgage Deed and Mortgage Note in favor of Brandvold, the subsequent sale and mortgage of the property forfeited any security interest Brandvold held in the property. 3. Upon Brandvold s filing of a grievance, The Florida Bar sent Respondent letters dated April 7, 2010, and April 27, 2010, to the mailing address then on file with The Florida Bar. An additional letter was sent on May 10, 2010, to Respondent s residential address. Respondent failed to respond to The Florida Bar s inquiries, and subsequently his record bar address was updated on or about July 31, 2010, to reflect and address of Township of Boquete, Chriqui Province, Republic of Panama. Additional correspondence was sent to this address, and Respondent again failed to respond. 4. Following the Grievance Committee s finding of probable cause, The Florida Bar filed a Complaint and Request for Admissions on December 22, 2010, and served Respondent with a copy via U.S. Mail to his address in Panama, which remained his official bar address. After Respondent failed to answer the Complaint, or respond to the Request for Admissions, The Florida Bar filed a Motion for Entry of 3

4 Default Judgment and Motion Deeming Matters Admitted on February 25, Respondent did not respond to the motion, and accordingly the Motion for Entry of Default Judgment and Motion Deeming Matters admitted was granted on March 7, Subsequently, on March 28, 2011, The Florida Bar received a letter from Respondent, addressing the allegations in the Complaint, but advising that he would not present himself at any hearings. On May 30, 2011, Respondent sent additional correspondence to The Florida Bar indicating that he had just received The Florida Bar s First Set of Interrogatories and Request for Production of Documents as the U.S. Post Office had mis-sent the items to the British Virgin Islands; however Respondent did not answer the interrogatories or provide any requested documents. Respondent did, however, include a copy of correspondence from The Florida Bar granting his Petition for Retirement as of May 4, A final hearing concerning discipline only was held on June 13, Given that Respondent did not receive The Florida Bar s Interrogatories and Request for Production until May 30, 2011, The Florida Bar s Motion for Sanctions precluding Respondent from presenting evidence was stricken. However, Respondent failed to appear at the final hearing and provided no evidence in mitigation. III. RECOMMENDATION AS TO GUILT: 4

5 By virtue of Respondent s failure to respond to The Florida Bar s Complaint and Request for Admissions, and the subsequent Order Granting The Florida Bar s Motion for Entry of Default Judgment and for Order Deeming Matters Admitted, I recommend that Respondent be found guilty of violating the following Rules Regulating The Florida Bar: Rules (Objectives and Scope of Representation), (Diligence), (Communication), and 4-8.4(g)(A lawyer shall not fail to respond, in writing, to any official inquiry by bar counsel or a disciplinary agency, as defined elsewhere in the rules, when bar counsel or the agency is conducting an investigation into the lawyer s conduct) of the Rules of Professional Conduct and Rule 5-1.1(b)(Money or other property entrusted to an attorney for a specific purpose, including advances for fees, costs, and expenses, is held in trust and must be applied only to that purpose) of the Rules Regulating Trust Accounts. IV. CASE LAW: I considered the following case law prior to recommending discipline: The Florida Bar v. Porter, 684 So.2d 810 (1996) Disbarment was warranted for attorney s misuse of client funds in failing to deposit check into his trust account, misrepresenting the payment of a mortgage, prior discipline and his failure to participate in the disciplinary proceedings until after the Bar s motion for default judgment was granted. The Florida Bar v. Friedman, 511 So.2d 986 (1987) Disbarment was warranted for attorney s abandonment of his law practice in general, specific instances of client neglect and other misconduct in 5

6 particular, and his failure to respond to the Bar s complaint, request for admissions and his failure to attend the final hearing. The Florida Bar v. Bartlett, 509 So.2d 287 (1987) Disbarment was warranted for attorney s neglect of client matters given prior discipline for similar misconduct, the absence of any mitigating or explanatory circumstances and failure to participate in the disciplinary proceeding. The Florida Bar v. Murray, 489 So.2d 30 (1986) Disbarment was warranted for attorney who neglected several client matters, abandoned his law practice and moved outside Florida. The Florida Bar v. Shoureas, 892 So.2d 1002 (2004) Three year suspension was warranted for attorney who neglected client matters, had default judgment entered against her, had prior discipline, but demonstrated mitigating circumstances V. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: I recommend that Respondent be found guilty of misconduct justifying disciplinary measures, and that he be disciplined by: A. Disbarment. B. Payment of The Florida Bar s costs in these proceedings. VI. PERSONAL HISTORY, PAST DISCIPLINARY RECORD, AGGRAVATING FACTORS, AND MITIGATING FACTORS: Prior to recommending discipline pursuant to Rule 3-7.6(m)(1)(C) of the Rules Regulating The Florida Bar, I considered the following: A. Personal History of the Respondent: 6

7 Age: 59 Date Admitted to Bar: April 4, 1979 Prior disciplinary record: None B. Aggravating Factors: 9.22(e) Bad faith obstruction of the disciplinary proceeding; 9.22(i) Substantial experience in the practice of law. C. Mitigating Factors: (none) VII. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED: I find that The Florida Bar, having been successful in the matter, reasonably incurred the following costs which are supported by affidavit: Administrative costs...$ 1, Court reporter attendance fee for final hearing...$ T O T A L $ 1, Dated this day of,

8 HONORABLE DEBORAH WHITE-LABORA, Referee Richard E. Gerstein Justice Building 1351 NW 12 th Street, Room 405 Miami, Florida Copies to: Thomas A. Kroeger, Bar Counsel Francis X. Santana, Respondent Kenneth L. Marvin, Staff Counsel 8