Respondent(s): Jimmy Payne, Principal Broker (Revoked), All Real Estate, LLC, Fayetteville, Arkansas, Formal Hearing #3440
Violation(s): A.C.A. § 17-42-311(a)(13), §17-42-311(a)(11), § 17-42-311(a)(2), § 17-42-311(a)(6), § 17-42-316(b)(2)(I), § 17-42-311(a)(7), and Commission Regulations 8.5(a), 10.10(a), 10.8(b) and (c), and 10.12(a)
Sanction(s): The Arkansas Real Estate Commission has unanimously determined to revoke Respondent Jimmy Payne’s license. Based upon the guidelines of Arkansas Code Annotated § 17-42-312, the Commission assessed a fine of $1,000.00 per violation, for a total fine of $11,000.00 against Respondent Payne.
Recovery Fund Order: Respondent Jimmy Payne is ordered to pay $4,100.00 to Complainant Swink, in a period not to exceed thirty (30) days. If Respondent Payne fails to make such payment, payment will be made through the Recovery Fund.
On or about July 26, 2011, the owner of property located at 1904 College Avenue, Fayetteville, Arkansas entered into an Exclusive Right-to-Sell (Commercial) agreement with Lindsey and Associates of Fayetteville, Arkansas through Salesperson Robert (Bob) Hopmann. Through multiple extensions, the Exclusive Right-to-Sell agreement remained in effect at all times pertinent to this matter. (NOTE: Neither Salesperson Hopmann nor Lindsey & Associates were subjects of this investigation.)
On or about September 1, 2012, Complainant W. Brooks Swink was served with an eviction notice to vacate the property he was leasing by November 15, 2012 necessitating that Complainant Swink locate a property into which he could move his business operation.
On or about October 1, 2012, at Respondent’s instruction, Complainant signed an incomplete Exclusive Agency Agreement (Commercial). Upon completion, the Exclusive Agency Agreement (Commercial) stated it was to expire on October 30, 2013, at 12:59 p.m., unless extended by Client and Broker.
On or about October 3, 2012, Respondent signed a statement affirming the Respondent received $2,500 from Complainant’s business, Brooks Graphics, for a deposit on investment property located at 1904 N. College Avenue, Fayetteville, Arkansas. Complainant remitted Cashier’s Check 3106127 dated October 2, 2012 to Respondent’s firm, All Real Estate for $2,500. Respondent did not reduce to writing the agreement and terms by which Complainant agreed to pay the deposit. Respondent did not deposit the funds into his trust account or with an escrow agent.
On or about October 19, 2012, Respondent signed receipt No. 486707 for $475 paid by Complainant for an Inspection conducted on 1904 N. College. On or about October 20, 2012, a home inspector of Fayetteville, Arkansas, issued an invoice for $475 for the inspection. Respondent did not reduce to writing the agreement and terms by which Complainant agreed to pay for the inspection.
On or about November 1, 2012, at Respondent’s instruction, Complainant signed an incomplete Exclusive Buyer Agency Agreement. Upon completion, the Exclusive Buyer Agency Agreement stated a beginning date of November 1, 2012 with an expiration date of November 31, 2013. Item #6 B of the Exclusive Buyer Agency Agreement stated the Selling Firm’s fee was $12,500 for professional services rendered. Item #9 stated, "Buyer may cancel this Exclusive Buyer Agency Agreement prior to its expiration only after: 1) Buyer has provided written notice to Selling Firm, sent by United States certified mail, return receipt required, and seven calendar days have elapsed since such written notice was received by Selling Firm. Upon the date of cancellation, Buyer shall be liable to Selling Firm for a cancellation fee equal to the liquidated sum of $12,500…" Item #15 stated ‘This agreement is also good on any other property which was found from $200,000 to $300,000 and/or a rental property with payments of "$100 to $2,000’ per month with the buyer having the right to buy at a later date." Respondent altered Item #15 which originally stated "$1,000 to $2,000 per month" because Complainant rented a property for less than $1,000 per month.
On or about November 2, 2012, Respondent signed receipt No. 486709 for $500 paid by Complainant for electric work. The receipt did not identify a property for which the electric work was to be done. On or about November 2, 2012, the home inspector issued an invoice for $500 for the electric work. Respondent did not reduce to writing the agreement and terms by which Complainant agreed to pay for the electric work. The electrical work was never done.
Respondent signed receipt No. 486708 for $1,600 paid by Complainant for "A. C. Work". The receipt did not identify a property. Respondent did not provide a copy of an invoice for the work. Respondent had not reduced to writing the agreement and terms by which Complainant agreed to pay for the "A. C. Work".
On or about November 16, 2012, at Respondent’s instruction, Complainant signed an incomplete Real Estate Contract (Commercial) for the subject property. Upon completion, the contract stated a purchase price of $300,000. Complainant never agreed to offer $300,000 for the property. Real estate contract Item #19, titled AGENCY, indicated that the LISTING FIRM AND SELLING FIRM ARE THE SAME AND REPRESENT BOTH BUYER AND SELLER and was signed by Respondent Broker Payne as the Selling Agent and the Listing Agent. Respondent did not have an agency agreement with the seller and did not represent the seller. Respondent did not present Complainant’s offer to the seller or to the seller’s agent. Complainant had assumed that the closing date was to be November 18, 2012. Item #11 of the Real Estate Contract stated "A.S.A.P." as the closing date.
On or about the end of November 2012, Complainant requested the funds Complainant had paid to Respondent be returned. Respondent did not remit the funds to the Complainant. Respondent claims the funds were applied to the $12,500 cancellation fee included in the Exclusive Buyer Agency Agreement. Complainant never executed a cancellation of the Exclusive Buyer Agency Agreement.
Posted on 07/12/2016
by Linda Alkire