Administrative Law: Judgments: Appeal and
Error. A judgment or final order rendered by a
district court in a judicial review pursuant to the
Administrative Procedure Act may be reversed, vacated, or
modified by an appellate court for errors appearing on the
. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the
record, the inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
Judgments: Appeal and Error. An appellate
court, in reviewing a district court's judgment for
errors appearing on the record, will not substitute its
factual findings for those of the district court where
competent evidence supports those findings.
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, for which an
appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
Insurance: Sales. The Insurance Producers
Licensing Act, Neb. Rev. Stat. §§ 44-4047 to
44-4069 (Reissue 2010 & Cum. Supp. 2018), authorizes
disciplinary actions against licensed insurance producers.
Actions: Jurisdiction: Insurance: Sales:
Time. Under Neb. Rev. Stat. § 44-4065 (Reissue
2010), if an insurance producer fails to report a civil
action taken against the producer in another jurisdiction,
within 30 days of the final disposition of the civil action,
the producer violates the reporting requirement of §
Statutes: Appeal and Error. When statutory
interpretation is one of first impression, the statutory
language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation [302
Neb. 893] to ascertain the meaning of statutory words which
are plain, direct, and unambiguous.
Insurance: Sales: Fraud: Words and Phrases.
Under Neb. Rev. Stat. § 44-4059(1)(g) (Cum. Supp. 2018),
"fraud" of an insurance producer means any act,
omission, or concealment which involves a breach of legal or
equitable duty, trust, or confidence justly reposed, and
injurious to another or by which an undue and unconscientious
advantage is taken of another.
Appeal and Error. To be considered by an
appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party
asserting the error.
from the District Court for Lancaster County: Susan I.
Timothy P. Sullivan, of Sullivan Law, and Arthur W. Leach, of
Law Office of Arthur W. Leach, for appellant.
Douglas J. Peterson, Attorney General, and John L. Jelkin for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
appeal presents our first opportunity to consider the
Insurance Producers Licensing Act. Addressing the regulatory
effect of a consent judgment previously entered against Mark
Diamond, a licensed insurance producer, the Nebraska
Department of Insurance determined that he had violated three
provisions of the act and imposed an administrative fine. On
review,  the district court upheld the
department's order. On appeal to this court, he contests
only one violation-arguing [302 Neb. 894] that his confession
of liability in the consent judgment did not
"admit" to "fraud" within the meaning
of § 44-4059(1)(g). Applying settled rules of statutory
interpretation, we reject Diamond's argument.
Accordingly, we affirm the district court's judgment.
February 2012, the United States of America and the State of
Colorado filed a civil action in the U.S. District Court for
the District of Colorado against Bella Homes, LLC, and
individuals within the company, including Diamond. The
complaint alleged violations of Mortgage Assistance Relief
Services (MARS) rules and related claims.
to the complaint, Bella Homes intended to buy homes from
individuals who were struggling to make their mortgage
payments and provide a 3- to 7-year repayment plan.
Essentially, it was expected to purchase the homeowner's
mortgage from the existing lender and enter into a lease with
the homeowner, where the homeowner would pay 40 to 60 percent
of their mortgage payment in "rent" to Bella Homes.
It never purchased a home loan from a mortgage lender. Nor
did it stop any foreclosure against a homeowner. It did take
over $3 million in "rent" from more than 450
was the chief executive officer and president of Bella Homes.
He formed Bella Homes at the request of Daniel Delpiano, who
developed the idea for that enterprise. Because Delpiano had
twice been convicted of fraud, he was prohibited from being a
fiduciary or handling another's finances.
March 2012, Diamond entered into a stipulated consent
judgment and permanent injunction, wherein he
"confess[ed] liability" to counts 6 and 7 of the
complaint. Each of these two counts consisted of two numbered
paragraphs. The first [302 Neb. 895] paragraph under each
count incorporated the allegations in paragraphs 1 through
184 of the complaint. Those paragraphs described an
"ongoing foreclosure-rescue scheme to defraud distressed
homeowners nationwide," "fraudulently obtain[ing]
approximately $3, 000, 000 from over 450 homeowners,"
"numerous material misrepresentations to convey the
false and fraudulent impression that homeowners will be able
to remain in their home," and "misrepresentations
to convey the false impression that Bella Homes will stop any
foreclosure on the home." The second paragraph under
each count alleged that "[b]y virtue of the foregoing
[allegations in paragraphs 1 through 184]," Diamond and
others were violating a particular rule in a specified
the second paragraph of count 6 asserted that Diamond was
"violating [§ 1015.3(c)] of the MARS Rule" and
that he did so "by making a representation, expressly or
by implication, about the benefits, performance, or efficacy
of any mortgage assistance relief service without competent
and reliable evidence that substantiate[d] that the
representation [was] true." The second paragraph of
count 7 asserted that Diamond was "violating [§
1015.5(a)] of the MARS Rule," which makes it a violation
to '"Request or receive payment of any fee or other
consideration until the consumer has executed a written
agreement between the consumer and the consumer's
dwelling loan holder or servicer incorporating the offer of
mortgage assistance relief the provider obtained from the