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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PORTER LAW CENTER, LLC d/b/a                     No. 73424-5-1
PORTER LAW CENTER, and DEAN
DOUGLAS PORTER,                                  DIVISION ONE


                        Appellants,

                v.

                                                 UNPUBLISHED OPINION
STATE OF WASHINGTON
DEPARTMENT OF FINANCIAL
INSTITUTIONS, DIVISION OF
CONSUMER SERVICES,

                        Respondent.              FILED: August 8, 2016
       Schindler, J. —The Department of Financial Institutions (DFI) filed charges

against Dean Douglas Porter and Porter Law Center LLC (collectively, Porter) alleging

violations of the Mortgage Broker Practices Act (MBPA), chapter 19.146 RCW. Porter

claimed he was exempt from the MBPA because a licensed Washington attorney

provided legal services to clients in Washington. Following a hearing, an administrative

law judge concluded Porter violated the MBPA by providing residential loan modification

services to Washington consumers without a license. DFI issued a final order adopting

the findings of fact and conclusions of law in the initial order. DFI ordered Porter to

cease and desist; pay $28,886.87 in restitution; pay a fine of $24,000.00; and pay

investigative fees. We affirm the DFI order.
No. 73424-5-1/2



                                            FACTS

       Dean Douglas Porter is licensed to practice law in Ohio. Porter owns Porter Law

Center LLC (PLC), an Ohio limited liability company located in South Carolina. PLC

provides nationwide foreclosure defense services including bankruptcy, loan

modification, and debt settlement. Porter is not licensed to practice law in Washington.

       On October 3, 2012, the Washington State Department of Financial Institutions

(DFI) received an anonymous complaint about a "Payment Reduction Notification"

advertisement. The advertisement urged "eligible property" owners in Olympia to use a

toll-free telephone number to complete the "prequalification process" for "mortgage

relief." The advertisement also listed a website, www.helpmod.com, to obtain "pre

qualification verification" and an address in Utah for "confirmation of eligibility" by mail.

       On October 5, a DFI investigator called the number listed on the Payment

Reduction Notification advertisement. The person who answered the call as the "Porter

Law Firm" in South Carolina said the law firm used a Washington attorney to provide

loan modification services to Washington residents. A few days later, another DFI

investigator called the same number. The call was answered by the "modification

department" of "Porter Law Firm representing Jefferson Consumer Law PLLC."

       On October 10, DFI sent Porter Law Firm and Jefferson Consumer Law PLLC a

"DIRECTIVE TO PROVIDE DOCUMENTS AND EXPLANATION" for loan modification

services. After neither the Porter Law Firm nor Jefferson Consumer Law PLLC

responded, DFI issued a subpoena to provide information by November 13.
No. 73424-5-1/3


       On November 14, 2012, an attorney representing Porter and PLC (collectively,

Porter) responded to the subpoena. The attorney signed the response in Porter's name

with his address and telephone number.

       In response to the question, "Are you currently or have you ever provided or

offered to provide loan modification services, including short sale negotiation services,

for properties or consumers located in the state of Washington?," Porter answered,

"Yes." In response to the question, "Please explain the service provided or offered and

the time period provided or offered," Porter states, "Porter Law Center offers legal

services relating to residential mortgages." Porter explained, "[l]t is often our

professional legal opinion that a loan modification is in the best interests of our clients.

In such cases, it would be unethical not to assist clients with these services."

       Porter states the "mailer received with the complaint is the only solicitations used

by PLC in WA." Porter identified eight Washington residents PLC assisted with
residential loan modifications and provided a "copy of a solicitation to Washington

consumers." Porter admitted charging each of the eight Washington residents "$3997

[+] a monthly maintenance fee for loan modification services rendered." Porter
identified Christopher Jason Mercado as the Washington attorney who provided the
residential loan modification services to Washington residents.

       Porter claimed the attorney exemption to the Mortgage Broker Practices Act
(MBPA), chapter 19.146 RCW, applied and filed a "Claim of Non-Applicability of the
Mortgage Broker Practices Act." Porter asserted PLC was not subject to the MBPA
because "Porter Law Center assists clients with application for loan modification as part

of the licensed practice of law in the State of Washington." DFI investigators attempted
No. 73424-5-1/4



to contact the eight Washington residents Porter identified and "ultimately spoke to two

of them: James Adney and Robert Olacio."

      On March 25, 2013, DFI filed a "Statement of Charges" against Porter. DFI

alleged Porter violated RCW 19.146.200(1) of the MBPA by "engaging in the business

of a mortgage broker for Washington residents or property without first obtaining a

license to do so" and RCW 19.146.0201(2) and (3) by "engaging in an unfair or

deceptive practice toward any person or obtaining property by fraud or

misrepresentation."

       Porter filed an administrative appeal of the Statement of Charges. Porter argued

PLC was "exempt from the MBPA" under former RCW 19.146.020(1)(c) (2009)1 and

WAC 208-660-008(5) because it performed the loan modification services as part of the

licensed practice of law in Washington and was not "principally engaged in residential

mortgage loan negotiations."

       Porter submitted a supplemental response to the subpoena. Porter changed his

answer to several questions. But Porter did not change the response that he "provided

or offered to provide loan modification services, including short sale negotiation

services, for properties or consumers located in the state of Washington." Nor did he

change the previous response that "Porter Law Center offers legal services relating to

residential mortgages," including "modification applications," and that the "mailer

received with the complaint is the only solicitations used by PLC in WA."

       DFI financial legal examiners Devon Phelps and Steve Sherman, Washington

resident James Adney, and Porter testified at the administrative hearing. Washington

attorney Mercado did not appear to testify.

       1 Laws of 2009, ch. 528, §2.
No. 73424-5-1/5


      Adney testified he received an unsolicited call on his cell phone from "Porter

Law." The caller stated Adney was behind on his mortgage payments and PLC could

work with his mortgage company to get "a loan modification." The caller stated PLC

was "operating out of Utah. Adney testified he called back and hired "Porter Law

Center." Adney completed and signed an application, a "Limited Services Retainer

Agreement," and a request for information from PLC. The administrative law judge

(ALJ) admitted the application, the Limited Services Retainer Agreement, and the

request for information into evidence.

      The Limited Services Retainer Agreement states PLC will "analyze the case,

prepare documents and negotiate with the lender, servicer and/or investor of the first

mortgage loan" for the "Borrower's residential property." Paragraph 6 of the Limited

Services Retainer Agreement states PLC "may contract or affiliate with co-counsel

attorneys in the course of representation of Borrower. . . . Borrower understands and

agrees that co-counsel may charge fees in addition to the Firm for services not covered

in the scope of this agreement." Paragraph 9 of the Limited Services Retainer

Agreement describes the scope of the PLC work as an attempt "to qualify Borrower's

first mortgage for work-out programs that are available."

       9.     Limited Scope of Services: The Firm will represent Borrower to the
              lender, servicer and/or investor(s) of their first mortgage. The
              scope of representation provided for by this Agreement is limited to
              attempts to qualify Borrower's first mortgage for work-out programs
             that are available. This can include:
                  a.   Initial consultation and file qualification.
                  b.   Preliminary legal review of the file.
                  c.   Ongoing legal consultation.

                  e.   Review and analysis of possible predatory lending issues
                       and review of forensic audit if applicable.
No. 73424-5-1/6


                  j.   Review by local counsel for eligibility and compliance,
                  k.   Attorney review for alternative legal options.

But Paragraph 9 specifically excludes legal services that "are not included within the

scope of this Agreement."

      Borrower acknowledges that the following matters are not included within
      the scope of this Agreement and agrees that, as to these matters, the Firm
      will not take any action on Borrower's behalf without a written request and
      a separate agreement and possibly an additional fee.

             (a) Motions to revoke a discharge;
             (b) Removal of a pending action in another court;
             (c) Obtaining title reports;
             (d) The determination of real estate tax liens:
             (e) Appeals to the BAP, District Court or Court of Appeals;
             (f) Correcting credit reports;
             (g) Negotiations with Check Systems regarding Borrower;
             (h) Defense of or response to non-mortgage collection activity;
             (i) Motions to dismiss Borrower's bankruptcy case filed by the
             Trustee, U.S. Trustee, or any creditor;
             (j) Any adversary proceeding filed by the Trustee, U.S. Trustee, or
             any other party on any basis, including, without limitation,
             proceedings to determine dischargeability of debts;
             (k) Preparing affirmation agreements, negotiating the terms of
             reaffirmation agreements proposed by creditors, motions to redeem
             personal property, and negotiating reaffirmation agreements when
             Borrower's income is not sufficient to rebut the presumption of
             undue hardship and special circumstances do not warrant the
             signing of a reaffirmation agreement;
             (I) Motion to impose or extend the bankruptcy stay;
             (m) Quiet title actions, quit-claim deeds or other conveyance and
             title issues;
             (n) Other matters not specifically part of the limited scope of this
             agreement.

      See the list attached to the end of this Agreement for details regarding the
      availability of additional legal services not within the scope of this
      Agreement.

      Adney testified that he communicated with PLC by e-mail and phone. Adney

said he "never even heard of Mercado and never talked to "anyone identifying

themselves as Christopher Mercado." Adney testified PLC never told him it was not
No. 73424-5-1/7


licensed to provide loan modification services in Washington. Adney "obtained a

modification of his residential loan mortgage" and paid PLC $3,476.

       The ALJ admitted into evidence copies of the retainer agreements for the other

Washington residents. The description of the scope of the services was the same as

the services set forth in the Limited Services Retainer Agreement signed by Adney.

       Porter testified PLC represented eight clients in Washington but he had "no idea"

how the eight Washington clients learned about PLC. Porter "presumed Mr. Mercado

was responsible for soliciting the eight Washington consumers." Contrary to the

responses to the DFI subpoena, Porter testified PLC did not engage in "any marketing

solicitations."


       [PORTER] I don't have any marketing solicitations.
       Q        No marketing solicitations? So it's your testimony it's not your
                    flier?
       A            That is correct.


        Porter testified the toll-free number listed on the Payment Reduction Notification

advertisement was "not our national number" and was "[n]ot a number that I am familiar

with." Porter said the www.helpmod.com Internet address listed on the advertisement

did not belong to PLC. Porter "presumed that Mr. Mercado provided legal services to

these eight Washington consumers" based on the "Customer Notes" Mercado submitted

to PLC.

       The ALJ admitted the Customer Notes from Mercado into evidence as exhibits.

The Customer Note entries "are blank, and the time entry reflects zero (0) minutes

billed." The only billing records "in evidence" show "a charge of $50" in late 2012 for

unspecified "tasks" Mercado performed for PLC clients. Porter testified he was unaware

of whether $50 was a reasonable fee for loan modification services.
No. 73424-5-1/8


       The ALJ concluded Porter violated RCW 19.146.200(1) of the MBPA by "offering

and providing eight Washington customers residential loan modification services without

possessing a mortgage broker or loan originator license." The ALJ rejected Porter's

testimony that Mercado provided legal services to the eight Washington clients. The

ALJ found there was "insufficient evidence on the record to establish what work, ifany,

that Mr. Mercado performed or oversaw," and the "weight of the evidence in the record

establishes that PLC staff outside of Washington performed most if not all of the loan

modification work for the eight Washington consumers at issue." The ALJ found that

because the loan modification services PLC provided were not "incidental to, or a small

part of, other legal representation" and instead were "the primary purpose of the

representation," the MBPA attorney exemption did not apply.

       The ALJ concluded Porter violated RCW 19.146.0201 of the MBPA by engaging

in "deceptive practices toward eight Washington consumers." The ALJ found PLC

"advertised residential loan modification services to Washington consumers via mailer,

telephone, and the internet" without disclosing it was "not licensed in Washington as

mortgage brokers, loan originators, or attorneys." The ALJ found Porter's testimony that

he did not engage in the solicitation of Washington residents not credible. "Mr. Porter

on two occasions told [DFI] in the Directive that the solicitation belonged to [Porter and

PLC]." The ALJ found there was "no evidence" PLC told consumers that Mercado,

rather than PLC, would represent them or provide loan modification services.

       The ALJ entered extensive and detailed findings of fact and conclusions of law

and an initial order. On July 16, 2014, DFI entered a final order adopting the ALJ

findings and conclusions. DFI ordered PLC to "cease and desist from further violation



                                             8
No. 73424-5-1/9


of Chapter 19.146 RCW" and ordered Porter and PLC to pay $28,886.87 in restitution, a

$24,000.00 fine, and investigative fees. Porter appealed. The superior court affirmed

the DFI final order.

                                             ANALYSIS


       Porter appeals the superior court order affirming the DFI decision. The

Washington Administrative Procedure Act (WAPA), chapter 34.05 RCW, governs

judicial review of a final administrative decision. Nationscapital Mortg. Corp. v. Dep't of

Fin. Insts.. 133 Wn. App. 723, 737, 137 P.3d 78 (2006). When reviewing agency action,

this court "sits in the same position as the superior court, applying the standards of the

WAPA directly to the record before the agency." Tapper v. Emp't Sec. Dep't. 122

Wn.2d 397, 402, 858 P.2d 494 (1993); Brown v. Dep't of Commerce. 184 Wn.2d 509,

544, 359 P.3d 771 (2015).2

       We review the agency's findings of fact for substantial evidence. Raven v. Dep't

of Soc.& Health Servs.. 177 Wn.2d 804, 817, 306 P.3d 920 (2013); Nationscapital. 133

Wn. App. at 737. Substantial evidence is "evidence of a 'sufficient quantity ... to

persuade a fair-minded person of the truth and correctness' of the agency action."

Campbell. 180 Wn.2d at 5713 (quoting Port of Seattle v. Pollution Control Hearings Bd..

151 Wn.2d 568, 588, 90 P.3d 659 (2004)). "We will not weigh the evidence or

substitute our judgment regarding witness credibility for that of the agency."

Nationscapital. 133 Wn. App. at 738; Port of Seattle. 151 Wn.2d at 588. We treat

findings of fact labeled as conclusions of law as findings of fact. Rilev-Hordkv v. Bethel



       2Therefore, we review the decision of the agency, not the superior court. Campbell v. Emp't Sec.
Dep't. 180 Wn.2d 566, 571, 326 P.3d 713 (2014).
       3 Internal quotation marks omitted.
No. 73424-5-1/10


Sch. Dist.. 187 Wn. App. 748, 759, 350 P.3d 681 (2015); Willener v. Sweeting. 107

Wn.2d 388, 394, 730 P.2d 45 (1986).

       Unchallenged findings are verities on appeal. Nationscapital. 133 Wn. App. at

738; Darkenwald v. Emp't Sec. Dep't. 183 Wn.2d 237, 244, 350 P.3d 647 (2015). We

review de novo an agency's "conclusions of law and its application of the law to the

facts." Raven. 177 Wn.2d at 817; Tapper, 122 Wn.2d at 402. Because Porter does not

assign error to any of the findings of fact, we treat the findings of the ALJ that were

adopted by DFI as verities on appeal. RAP 10.3(h); Darkenwald. 183 Wn.2d at 244;

Nationscapital. 133 Wn. App. at 738; cf. Ferry County v. Growth Mgmt. Hearings Bd..

184 Wn. App. 685, 725, 339 P.3d 478 (2014). Although the ALJ labeled some findings

of fact as conclusions of law, we treat those conclusions as findings of fact. Willener,

107Wn.2dat394.

       Porter contends the attorney exemption to the MBPA applies and substantial

evidence does not support the conclusion that PLC engaged in unlicensed activity in

violation of RCW 19.146.200(1) or deceptive practices in violation of RCW 19.146.0201.

       Under RCW 19.146.200(1), a person "may not engage in the business of a

mortgage broker or loan originator without first obtaining and maintaining a license

under this chapter" unless specifically exempt under RCW 19.146.020. Under the

MBPA, "person" means "a natural person, corporation, company, limited liability

corporation, partnership, or association." Former RCW 19.146.010(17) (2010).4 Former

RCW 19.146.010(11)(c) defines "loan originator" to include:

       [A] natural person who for direct or indirect compensation or gain or in the
       expectation of direct or indirect compensation or gain performs residential


       4 Laws OF 2010, ch. 35 § 13.


                                             10
No. 73424-5-1/11


          mortgage loan modification services or holds himself or herself out as
          being able to perform residential mortgage loan modification services.[5]

RCW 19.146.010(21) defines "residential mortgage loan modification services."

RCW 19.146.010(21) states:

          "Residential mortgage loan modification services" includes negotiating,
          attempting to negotiate, arranging, attempting to arrange, or otherwise
          offering to perform a residential mortgage loan modification. "Residential
          mortgage loan modification services" also includes the collection of data
          for submission to any entity performing mortgage loan modification
          services.


          Porter argues DFI erred in concluding the attorney exemption to RCW

19.146.200(1) did not apply to PLC and improperly placed the burden of proof on

Porter.


          Under former RCW 19.146.020(1)(c), an attorney licensed to practice law in

Washington who is "not principally engaged in the business of negotiating residential

mortgage loans" is exempt from the MBPA. Former RCW 19.146.020(1) provides:

          The following are exempt from all provisions of this chapter:

                 (c) An attorney licensed to practice law in this state who is not
          principally engaged in the business of negotiating residential mortgage
          loans when such attorney renders services in the course of his or her
          practice as an attorney.^




          5 Emphasis added.
          6The legislature amended RCW 19.146.020(1)(c) in 2013. Laws of 2013, ch. 30, § 2. RCW
19.146.020(1) now provides:
          The following are exempt from all provisions of this chapter:

                  (c) An attorney licensed to practice law in this state. However, (i) all mortgage
          brokeror loan originator services must be performed by the attorney while engaged in the
          practice of law; (ii) all mortgage broker or loan originator services must be performed
          under a business that is publicly identified and operated as a law practice; and (iii) all
          funds associated with the transaction and received by the attorney must be deposited in,
          maintained in, and disbursed from a trust account to the extent required by rules enacted
          by the Washington supreme court regulating the conduct of attorneys.


                                                      11
No. 73424-5-1/12


       WAC 208-660-008(5)(a) provides that "an attorney licensed in Washington" is

exempt from the MBPA under RCW 19.146.020(1 )(c) if the mortgage broker activities

performed by the attorney "are incidental to your professional duties as an attorney."7
       There is no dispute Porter is not licensed to practice law in Washington. Porter

asserts that because Washington attorney Mercado provided mortgage loan

modification services for PLC Washington clients, DFI erred in concluding the

exemption did not apply. The record supports the DFI conclusion that the "weight of

evidence establishes that [PLC], not Mr. Mercado, performed these services for the

eight consumers at issue."

       Adney testified he communicated only with PLC paralegals and never heard of
Mercado. Porter testified he did not know what work Mercado provided to the

Washington clients and Porter, not Mercado, assigned work on the cases to the PLC

paralegals.

        The unchallenged findings establish the loan modification services Porter

provided were not "incidental to, or a small part of, other legal representation" and were


        7 WAC 208-660-008(5) states:
        As an attorney, must Ihave a mortgage broker or loan originator license to assist a
        person in obtaining or applying to obtain a residential mortgage loan in the course
        of my practice?
                  (a) If you are an attorney licensed in Washington and if the mortgage broker
        activities are incidental to your professional duties as an attorney, you are exempt from
        the Mortgage Broker Practices Act under RCW 19.146.020(1 )(c).
                  (b) Whether an exemption is available to you depends on the facts and
        circumstances ofyour particular situation. For example, if you hold yourself out publicly
        as being able to perform the services of a mortgage broker or loan originator, or if your
        fee structure for those services is different from the customary fee structure for your
        professional legal services, [DFI] will consider you to be principally engaged in the
        mortgage broker business and you will need a mortgage broker or loan originator license
        before performing those services. A"customary" fee structure for the professional legal
        servicedoes not include the receipt of compensation or gain associated with assisting a
        borrower in obtaining a residential mortgage loan on the property.
(Boldface in original.)


                                                     12
No. 73424-5-1/13


"the primary purpose of the representation." The Limited Services Retainer Agreement

describes the scope of PLC work on behalf of the Washington clients as "attempts to

qualify Borrower's first mortgage for work-out programs that are available," and explicitly

lists legal services that "are not included within the scope of this Agreement." The

unchallenged findings and the administrative record establish the MBPA attorney

exemption under former RCW 19.146.020(1)(c) did not apply.

       Porter also argues DFI erred in placing the burden on Porter to prove the

attorney exemption applied. Because the unchallenged findings and the administrative

record establish the attorney exemption does not apply, Porter cannot show prejudice.

RCW 34.05.570(1)(d); Denslev v. Dep't of Ret. Sys.. 162 Wn.2d 210, 217, 173 P.3d 885

(2007).

       The unchallenged findings support the DFI conclusion that PLC acted as a loan

originator without a license in violation of RCW 19.146.200(1). Porter offered residential

loan modification services and received compensation for those services. While Porter

was "admittedly not licensed as [a] mortgage broker[ ] or loan originator[ ] in the state of

Washington," PLC "held [itself] out publicly to at least eight Washington consumers as

being able to perform the services of a mortgage broker or loan originator." The

findings establish the Washington consumers "paid PLC to negotiate, attempt to

negotiate, arrange, or attempt to arrange a residential loan modification for them."

          Porter contends substantial evidence does not support finding PLC held itself out

as being able to provide loan modification services directly to Washington consumers

and the DFI decision is arbitrary and capricious.




                                              13
No. 73424-5-1/14


       The unchallenged findings support the conclusion that Porter violated former

RCW 19.146.0201 (2009)8 of the MBPA. Former RCW 19.146.0201 states, "It is a

violation of this chapter for a loan originator or mortgage broker required to be licensed

under this chapter to: . . . (2) Engage in any unfair or deceptive practice toward any

person." The findings establish PLC "advertised residential loan modification services

to Washington consumers via mailer, telephone, and the internet." The Payment

Reduction Notification flyer, Adney's testimony, and the PLC website support this

finding.

       The unchallenged findings establish there is "no evidence" that PLC "disclosed to

Washington consumers, during such advertising, that they were not licensed in

Washington as mortgage brokers, loan originators, or attorneys," or that PLC "ever told

Washington consumers that Washington attorney Christopher Mercado would represent

them or provide them loan modification services."

       Neither the flyer nor the PLC website mention PLC is not licensed as a mortgage

broker or loan originator in Washington or that Washington attorney Mercado would

provide the loan modification services for PLC's Washington clients.

       "The scope of review under an arbitrary and capricious standard is very narrow,

and the party asserting it carries a 'heavy burden.'" Ass'n of Wash. Spirits &Wine

Distribs. v. Liguor Control Bd.. 182 Wn.2d 342, 359, 340 P.3d 849 (2015)9 (quoting King

County Pub. Hosp. Dist. No. 2 v. Dep't of Health. 167 Wn. App. 740, 749, 275 P.3d




       8 Laws OF 2009, ch. 528, § 3.
       9 Internal quotation marks omitted.


                                             14
No. 73424-5-1/15


1141 (2012)). "An agency's decision is arbitrary and capricious ifthe decision is the

result of willful and unreasoning disregard of the facts and circumstances." Overlake

Hosp. Ass'n v. Dep't of Health. 170 Wn.2d 43, 50, 239 P.3d 1095 (2010). " '[W]here

there is room for two opinions, an action taken after due consideration is not arbitrary

and capricious even though a reviewing court may believe it to be erroneous.'" Wash.

Indep. Tel. Ass'n v. Wash. Utils. & Transp. Comm'n. 148 Wn.2d 887, 905, 64 P.3d 606

(2003)10 (quoting Rios v. Dep't of Labor &Indus.. 145 Wn.2d 483, 501, 39 P.3d 961

(2002).

       The decision that PLC engaged in deceptive practices in violation of former RCW

19.146.0201 is supported by the unchallenged findings and the record, and the decision

is not arbitrary or capricious.

          Porter claims the ALJ "erroneously made credibility determinations." We

disagree. An ALJ is entitled to determine the weight given to conflicting evidence. See
Port of Seattle, 151 Wn.2d at 588; Beattv v. Wash. Fish &Wildlife Comm'n, 185 Wn.

App. 426, 449, 341 P.3d 291 (2015); William Dickson Co. v. Puoet Sound Air Pollution
Control Agency. 81 Wn. App. 403, 411, 914 P.2d 750 (1996). Credibility determinations
made by a presiding officer at an administrative hearing "are not subject to appellate
review." Dep't of Health Unlicensed Practice Program v. Yow. 147 Wn. App. 807, 820,

199 P.3d 417 (2008).

          Porter also claims the ALJ erred in admitting hearsay evidence. We disagree.

Under the WAPA, the Rules of Evidence are "guidelines for evidentiary rulings." RCW




          10 Internal quotation marks omitted.


                                                 15
No. 73424-5-1/16


34.05.452(2). The WAPA expressly provides that hearsay evidence is admissible if "in

the judgment of the presiding officer it is the kind of evidence on which reasonably

prudent persons are accustomed to rely in the conduct of their affairs." RCW

34.05.452(1). "Findings may be based on such evidence even if it would be

inadmissible in a civil trial." RCW 34.05.461(4).

       Porter contends the ALJ erred in allowing the DFI investigators to testify that

Washington resident Robert Olacio filed a complaint against PLC. But Porter provided

the names of the PLC Washington clients, including Olacio, and identified how much he

charged each client. Porter also asserts the ALJ abused its discretion by admitting

evidence about the Washington clients DFI was not able to contact. Porter argues the

evidence was irrelevant and "highly prejudicial because it suggested a pattern of

conduct on behalf of PLC." The ALJ did not abuse its discretion in admitting the

evidence. Whether Porter provided loan modification services to Washington residents

outweighed any prejudice.

       Porter challenges the $24,000 fine imposed by DFI. Porter argues DFI

"arbitrarily fabricated a fine amount" and failed to follow prescribed procedures because

it "deviated from its usual practice of using a fine matrix."

       Former RCW 19.146.220(2)(c) (2006)11 authorized DFI to impose fines for "[a]ny

violation of this chapter." WAC 208-660-530(6) gives DFI the discretion to impose a fine

of up to $100 for each violation. "Each day's continuance of the violation is a separate

and distinct offense." WAC 208-660-530(6). Neither RCW 19.146.220 nor WAC 208-

660-530 requires DFI to utilize a "fine matrix."



       11 Laws of 2006, ch. 19, § 13.


                                              16
No. 73424-5-1/17


      The unchallenged findings support the $24,000 fine. The findings establish PLC

"worked for at least one month on each of their eight Washington clients' residential

loan modifications." DFI calculated the fine at 30 days per customer. The decision to

impose a fine of $3,000 for each of the eight Washington clients was not arbitrary and

capricious or a failure to follow a prescribed procedure.

       Porter also challenges the order to pay $28,886.87 in restitution. But the record

shows Porter admitted the eight PLC Washington clients paid a total of $28,886.87.

       Porter asserts the MBPA violates the separation of powers by encroaching on

the Supreme Court's authority to regulate the practice of law. We disagree.

       The separation of powers doctrine " 'serves mainly to ensure that the

fundamental functions of each branch remain inviolate.'" Brown v. Owen. 165 Wn.2d

706, 718, 206 P.3d 310 (2009) (quoting Carrick v. Locke, 125 Wn.2d 129, 135, 882
P.2d 173 (1994)). In determining whether a particular action violates the separation of
powers doctrine, we look to " 'whether the activity of one branch threatens the
independence or integrity or invades the prerogatives of another.'" Brown, 165 Wn.2d
at 71812 (quoting Carrick, 125 Wn.2d at 135). Although "the regulation of the practice of
law is within the sole province ofthe judiciary," application ofconsumer protection laws
such as the MBPA to attorneys "does not trench upon the constitutional powers ofthe
court to regulate the practice of law." Bennion. Van Camp. Haoen &Ruhl v. Kassler




       12 Internal quotations omitted.


                                             17
No. 73424-5-1/18


Escrow. Inc.. 96 Wn.2d 443, 453, 635 P.2d 730 (1981); Short v. Demopolis. 103 Wn.2d

52,65,691 P.2d 163(1984).

      We affirm the final decision and order of DFI.




                                                       *^WLQ?^,
WE CONCUR:




          s\S~1LvA t
           ^f




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