The Florida Bar v. Jose Carlos Marrero
157 So. 3d 1020
| Fla. | 2015Background
- Jose Carlos Marrero, president of a title agency, accepted a $200,000 cashier’s check from lender Gonzalez to be used as a second-mortgage loan to borrowers Gutierrez and Marrero.
- Marrero deposited the funds into his escrow account on December 15, 2005, and wired the entire $200,000 to the borrowers the next day, before any note or mortgage were prepared or signed.
- The promissory note and mortgage were drafted and executed 25–26 days later; at execution the borrowers did not yet own the property identified as collateral (they acquired it after the Countrywide closing).
- Marrero delayed recording the Gonzalez mortgage for about six months, and he failed to disclose the Gonzalez loan on title documents, HUD/form compliance, and the title insurance policy for Countrywide Bank.
- Borrowers did not disclose the Gonzalez loan on their Countrywide loan application; Gonzalez could not recover her funds after payments ceased.
- The Florida Supreme Court found Marrero knowingly drafted false documents, made deliberate omissions to Gonzalez and Countrywide, and misapplied escrow funds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marrero violated Rule 4-8.4(c) by drafting/executing documents misrepresenting borrowers’ authority to encumber property | Marrero deliberately drafted, executed, and witnessed a mortgage falsely representing borrowers could encumber property | Marrero lacks requisite intent; claims inability to understand HUD-1 and ignorance of documents | Court: Guilty — deliberate acts and position as closing/title attorney establish intent |
| Whether Marrero violated Rule 4-8.4(c) by failing to disclose material facts to lender Gonzalez (omissions) | As escrow agent Marrero had fiduciary duty to disclose that funds were not used as agreed and that borrowers lacked ownership when funds disbursed | Marrero points to Pedrosa as the negotiator and attempts to shift responsibility | Court: Guilty — fiduciary duty required disclosure; omissions were knowing and deliberate |
| Whether Marrero violated Rule 4-8.4(c) by failing to disclose the Gonzalez loan to Countrywide Bank and on title paperwork | Marrero knowingly omitted the $200,000 encumbrance and down-payment source, misleading Countrywide and title insurer | Marrero contends ignorance or reliance on others for closing details | Court: Guilty — omission prevented discovery of encumbrance and misled lender/title insurer |
| Whether Marrero violated Rule 5-1.1(b) by misapplying escrow funds | Gonzalez entrusted funds for a specific purpose (second mortgage); Marrero applied funds contrary to that purpose by disbursing before documents and to buy property | Marrero asserts he relied on Pedrosa and lacked duty to verify terms | Court: Guilty — attorney must know escrow terms and exercise diligence; Marrero misapplied entrusted funds |
Key Cases Cited
- Fla. Bar v. Shoureas, 913 So. 2d 554 (discusses referee findings standard)
- Fla. Bar v. Watson, 76 So. 3d 915 (4th DCA 2011) (drafting/signing documents known to be false violates rule 4-8.4(c))
- Fla. Bar v. Brown, 905 So. 2d 76 (claiming ignorance of documents does not negate intent)
- Fla. Bar v. Hines, 39 So. 3d 1196 (escrow/closing attorneys owe fiduciary duties and must exercise diligence)
- Fla. Bar v. Joy, 679 So. 2d 1165 (escrow agents owe duties to all principal parties; implied obligations to know terms and disburse accordingly)
- Ward v. Florida Bar, 599 So. 2d 650 (lawyers’ heightened fiduciary duty when holding clients’ funds)
- United American Bank v. Seligman, 599 So. 2d 1014 (Fla. 5th DCA 1992) (escrow agent relationship imposes duties to know principal agreement and exercise reasonable skill)