by Kenneth Eade
Neither one of them had suffered a foreclosure at the hands of a predatory lender, but the background checks revealed that Thomas had paid his share of high interest loans on rent to own furniture and car payments. Deans had grown up in Lancaster, California, a small bedroom community north of Los Angeles, which was one of the hardest hit communities by the foreclosure crisis. She was likely to have at least one friend who had suffered a foreclosure. Satisfied with the jury, Brent announced, “The Plaintiff will accept the jury as presently constituted.”
That left about twenty minutes to Stein before the lunch break. However, to Brent’s surprise, Stein also announced that he would accept the jury. The Clerk swore in the jury, and the judge gave them the beginning admonishments not to discuss the case outside of the jury room or with any counsel.
“Your Honor, may counsel approach the bench?” asked Stein.
The request was granted and, outside the presence of the jury, Stein asked, “Your Honor, may we have a small recess before lunch? I have an important matter to discuss with my client that may be dispositive of the case.”
“Well, Mr. Stein, we have about fifteen minutes left before the lunch break, and, as you know, I have all the time for this trial carefully allotted out. There won’t be any more time in the schedule to give.”
“I know, Your Honor, but it is critical that I contact my client immediately, before the lunch break.”
“I’m not inclined to grant that, but if you want to break for lunch early, that fifteen minutes will count against your allotted time, and I’m sure Mr. Marks will be happy to discuss any issues you feel may be dispositive of this case.”
“I’ll wait in the hall,” said Brent.”
34
One of the tenets of trial preparation was to be ready for just about anything to happen. Although the rules of discovery left no surprises in the evidence, that didn’t mean that there were no surprises at all during trial. Sometimes witnesses didn’t testify in the same way or with the same demeanor. Trial was an art, not a science, and the outcomes were less predictable than any science experiment could ever be. Brent was curious about what Stein had to say that may have the magnitude to dispose of the entire case, but not surprised. The rulings on the motion in limine had come as a great blow to him. Brent’s case was weak at best, and depended on putting on the video tape of George Marsh’s testimony, but it was still a case that could be presented to the jury, who would decide it not by logic, but with emotion. Stein and his client had obviously made an economic assessment and decided it how much it was worth to them to end it all now with a settlement offer. Stein approached Brent, who was sitting on a bench outside the courtroom. He sat next to him and offered one of his phony smiles.
“Brent, I have an offer from my client, but it’s the only one we’re prepared to make, so I suggest you discuss it with your client thoroughly.”
“What’s the offer?”
“Any settlement would have to be confidential.”
This meant that neither April nor Brent could ever discuss the settlement, or the case. It could also not be a “calling card” for Brent’s specializing in predatory lending cases.
“I’m listening,” said Brent.
“We will stipulate to quiet title to the house and discharge the loan. Your client walks away with her parents’ house and we eat the mortgage. Both sides to pay their own fees and costs.”
“Not sure if that will fly, but I’ll communicate it to my client.”
“Let me know before she takes the bench and we’ll put it on the record.”
***
Brent called April and told her to meet him at the Carl’s Junior in the Los Angeles Mall, and made his way across the street, taking the first available orange plastic booth, which was covered with a layer of wiped-over grease. A few seconds later, a man sat down at his table. He was about 50, with short, greying hair, slate grey eyes and an ample nose. He was dressed about the same as the other patrons; like a government worker who was taking a lunch break from work.
“I’m afraid this seat is taken,” said Brent.
“Don’t worry, Mr. Marks, I won’t be long,” said the stranger, in a scratchy, but distinguished voice that bore an East Coast accent.
“I’m sorry, but I don’t know you. Who are you?”
“I represent an interested party in the Marsh case.”
“And that party would be?”
“That’s confidential.”
“And your name?”
“You can call me Mike.”
“Okay, Mike. I don’t know who you are or who this interested party is, but I’m meeting my client in a few minutes, and I’d like to ask you to leave.”
“Look, Mr. Marks. We all have our jobs to do…”
“And yours is?”
“I take care of the things that need to get done. And I’m very good at what I do.”
That sounded like a threat to Brent, but this guy looked more like a businessman than a thug.
“Great, now, as I said, I’m meeting my client, and…”
“Mr. Marks, I know you don’t know me and think you have no reason to talk to me, but let me assure you of one thing. Talking to me right now is the most important thing you may do in your life.”
Brent looked at the stranger with surprise, but he continued without letting Brent get a word in. “My employer has an interest in this case settling. Whether it settles now or later is not important, but it must be settled. Am I making myself clear?” The stranger’s resolve and the look in his eyes as they made burning contact with Brent’s felt both mysterious and dangerous.
“I’m not sure I understand.”
“If this case were not to settle, that would be a mess…a mess that I would be charged with cleaning up. You are familiar with the function of a cleaner, Mr. Marks, aren’t you?” The mystery that Brent was feeling suddenly turned to terror, and crawled its way up his spine.
“I think I get the message,” said Brent.
“I thought you would. Have a nice day, Mr. Marks.” The stranger rose.
“Wait, how do I contact you?”
“Mr. Marks, if you do the right thing, this should be the last time you ever need to have contact with me.” And with that, the stranger left. Brent turned his head to look, but the stranger, Mike, had disappeared.
John Kennedy said, “In a crisis, be aware of the danger, but recognize the opportunity.” Brent had been handed an opportunity to settle the case and now it was clear to him just how dangerous this case really was.
35
“You honestly think I’m going to accept this?" April demanded. Her attitude seethed and catapulted toward Brent as if he was not only the bearer, but the producer of the bad news.
“April, have you heard of the cliché ‘Don’t shoot the messenger?’ Firstly, I have a legal obligation to convey this offer to you. Secondly, no more than five minutes after Stein gave me the offer, I was visited by a ‘friend of an interested party’ who encouraged me to accept it.”
“What do you mean?”
“Would it surprise you, April, after your father’s death and the certain murder of my investigator, that a criminal element may be at play here?”
“It’s Bernstein, I know it is.”
“No matter who it is, the fact is that we are both in danger. You and me. And there’s nothing that anyone can do to protect us. We have to take that into account in evaluating this offer.”
“I don’t accept it.”
“Remember what I told you in the beginning? That if we invalidate their right to foreclose, you still owe them money if you want to keep the house? Accepting this offer means you don’t owe the money anymore. You were the one who told me, just today, that you should have never taken on the bank.”
“Yes, but…”
“Let’s think about this logically. We might be able to swing it if we brought a videotaped deposition of a deceased witness who could speak, but your father’s testimony is shaky at best eve
n if he were still alive to give it, because of the issue of augmentative and alternative communication.”
“But we won on that issue…”
“Yes, because I convinced the judge to go against her tentative ruling. But if she had a problem with it initially, just imagine what the 12 strangers on the jury will think about it.”
“So you think I should take the offer? Even with them cramming it down our throats like this? And threatening us as well?”
“You decide. I’m just delivering the facts. They may be bluffing, but chances are that they’re not. Winning a case is not worth your life.”
“This case is.”
“This case has already cost you, April, and RICO is our shakiest cause of action. We have a 50-50 chance at best to win it.”
“Then why would they offer a settlement?”
“We have a better than 50-50 chance on our declaratory relief action. They know that. It won’t cost them anything to walk away from the loan. And they’re afraid of that 50% chance we could get RICO. It would be a disaster for them.”
“I need time to think about it.”
“That’s one thing we don’t have.”
“Then let’s keep going.”
***
Standing at the lectern in front of the jury box, Brent’s opening statement was short and to the point, as he outlined the evidence that he intended to present in his case-in-chief. However, to spoon feed twelve people who were either forced to jury duty, or appearing there instead of being on their job, he had to hook them within the first five minutes, which were carefully calculated to make the trial interesting. As he spoke, he made eye contact with every juror.
“Ladies and Gentlemen, in 2008, the United States economy and the world economy crashed as a direct result of widespread bank fraud, taking many victims with it, including my client’s parents, George and Anne Marsh, who were brutally beaten in their home on November 25, 2008.
“April’s mother, Anne, was murdered. Her father, George Marsh, was incapacitated from injuries received in the beating and he has recently died. We will present evidence in this trial that Prudent Bank was responsible for their personal tragedy.”
Brent paused to look at April, then back at the jury.
“To understand what happened, you have to first understand how the banks in general, and Tentane Mutual in particular contributed to the financial crisis of 2008, in which many people had lost almost everything they owned, including their homes, large financial institutions almost collapsed, and stock markets throughout the world crashed.
“The big banks made loans on real estate that was overvalued. Those loans were designed to start at very low interest rates, and the rates could then fluctuate and go exponentially higher. In this way, many people were qualified for loans but they could not afford to pay in the long run. Finally, those loans were pooled together and packaged as securities called mortgage backed securities that were sold by Wall Street to investors. This way, the banks made huge fees, brokers made enormous commissions, and the risk was passed on to investors in the market.”
Brent paused, looked down at his notes, then back at Juror number 6, Claire Deans, to begin his eyeball journey back and forth across the jury box, ending with juror 12, Franklin Thomas. The subject was a bit dry, but the jury was hooked.
“The financial crisis was triggered by a complex interplay of relaxed lending policies by the big banks that made getting a home loan easier, and overvalued sub-prime mortgages which were pooled and sold to investors as mortgage backed securities. They overvalued properties based of their mistaken theory that housing prices would always continue to escalate. If you had a house, you could get a loan. It was that simple.
“Add to this questionable trading practices on behalf of both buyers and sellers, compensation structures that prioritized short-term deal flow over long-term value, and a lack of adequate capital holdings from banks and insurance companies to secure or back the financial commitments they were making, and you had a disaster that was just waiting to happen. For George and Anne Marsh their own personal disaster began when they were offered a loan by Tentane Mutual, through Steven Bernstein, its Santa Barbara loan manager.”
Brent went on to outline the evidence that he would present in the case, which pointed to the conclusion that Tentane Mutual had failed to assign the Marsh loan to the trust securitization pool before it closed, thus rendering the assignment to the trust invalid under the agreement that had set it up. Prudent Bank tried to cover up this failure by fraudulently assigning it to the trust securitization pool after they found out it had never been done. This meant that Prudent had no right to foreclose on the property. Brent then went on to the grand prize – RICO.
“We intend to present evidence that Prudent Bank has committed at least two serious crimes; the crime of financial institution fraud and the crime of aiding and abetting murder.”
The wide-opened eyes and mouths of most of the men and women of the jury indicated to Brent that, if they were asleep before, they had now awakened. Nobody could resist a good murder mystery. They kept their eyes on Brent as if they were watching a compelling docudrama on television, as he outlined the evidence he would present in the case, despite the intermittent objections by Stein to try to throw Brent off.
William Black took the podium next to present his statement of the case for Steven Bernstein. His skill and manner of presentation gave away his undeniable experience as a trial attorney, shattering any hopes Brent may have had for the jury to get bored by the time Stein took to give his opening remarks.
36
Shakespeare must have had a courtroom in mind when he said, “All the world’s a stage,” and Joe Stein confidently took that stage like it was his kingdom. His manner in speaking to the jury made everyone in the room feel like they were sitting in front of the fireplace at Stein’s house, while he told a tantalizing story.
“Good morning ladies and gentlemen. It is certainly a tragedy that April Marsh lost both of her parents, in such a terrible way and at such a young age.”
Stein feigned a genuine look of sympathy in April’s direction.
“I’m not going to play down the evidence of her tragic loss. But that is not what this case is about. The evidence I will present here will show that Tentane Mutual and then Prudent Bank offered their help to George Marsh when he was in despair and at his greatest time of need.”
Brent could have sworn he heard an orchestra of violins playing a melancholy tune while Stein cleverly used the Marsh tragedy to set up the bank, not as the evil Simon Legree, but the hero who had come to their rescue.
“Ladies and Gentlemen, the evidence will show that all of the documents were properly recorded that were necessary to secure the Marsh note, and that this note was passed on to Prudent Bank. I agree with Mr. Marks that it is a terrible thing to lose your home, but the evidence in this case will show that Mr. and Mrs. Marsh voluntarily put their home up as collateral for the money they so desperately needed to get their financial lives back on track. They knew the risk if the unspeakable happened; if things didn’t work out and they were unable to pay the loan.”
Stein cleverly weaved in every fact he intended to produce, and the jury, rather than being bored, was absolutely fixated on his version of the story.
“Ladies and Gentlemen, finally I would like to remind you that it is the Plaintiff who must bear the burden of bringing forth evidence to support each of her claims. Think of it as a puzzle. We all know what a puzzle looks like if it’s only missing a few pieces here and there. We can still tell what the picture is. But if the puzzle is missing too many pieces, it’s impossible to recognize the picture without looking at the box. What does not fit in this puzzle is the act of murder. And, like that unfinished and undiscernible puzzle, even though I believe that the evidence the Plaintiff produces will not be enough to make a case of RICO, we will present evidence that negates the bank of any responsibility.”
When Stein had finished, Brent
realized that Stein had planted seeds in the minds of each of the jurors that he would cultivate and water during the trial. The jurors had now been briefed. All of their biases and prejudices, their first impressions of April, Brent, Stein, and Black and Bernstein, had all been fixed in stone. Whether the evidence that was presented could change any of those pre-formulated opinions would not be known until the end of the trial.
37
“Mr. Marks, you may call your first witness, said Judge Masters.
“The Plaintiff calls Tanya Barton.”
Barton was a custodian of records for Prudent Bank. She was short, timid, and was dressed in a 90’s style business suit, as if she had recently purchased her wardrobe at the Goodwill or had just forgotten to take it there. Her testimony, although dry, was essential to establishing the elements of the case.
Barton testified that in 2006, Tentane Mutual had loaned $750,000 to the Marshes, and identified their loan application, the subprime promissory note and deed of trust. She also verified that the note contained an adjustable rate rider allowing the interest rate to adjust, or increase, on the first day of June 2006 and on that day every month thereafter for the entire life of the loan. With Barton’s testimony, Brent had established that the Marshes had taken out a subprime, toxic loan with Tentane that had provisions for “death spiral” interest rate increases that would make it impossible for them to pay their payments later on. Later, Brent would call Bernstein to testify that he prequalified the Marshes for this loan, even though they had no income at the time.
Barton further identified the Pooling and Service Agreement (PSA) that Tentane had entered into with Deutschland Bank, which was governed by New York law, and the trust it created that was called “Tentane Mutual Pass- Through Certificates, Mortgage Series 2006-TT53 Trust.” The intention of Tentane was to transfer the Marsh loan into the trust along with hundreds of millions of dollars in other mortgages, take the money, and then forget about them.
