Chapter 31
Opening Statements
On Monday when Matt came to work he was surprised to see a large manila envelope on his desk. It was from his father and addressed to him and Ryan. A cold chill went through him seeing the ominous package. He called Ryan on the intercom and told him to come to his office. In less than a minute Ryan was at his side.
“What’s in the package?”
“It’s from Dad.”
“Huh? From Dad?”
“Right.”
“Well, that’s weird. What’s in it?”
“We’re about to find out,” Matt said, taking his letter opener and slitting the top of the envelope. Matt looked at Ryan and then pulled out a stock certificate in Coleman & Sons PC, a deposit slip, a warranty deed, and a letter addressed to them. Matt read the letter.
Dear Matt & Ryan,
Your mom and I have decided it is too risky to hang around for a trial. By the time you read this letter we’ll be out of the country. Don’t try to find us. We’ll find a way to communicate with you in a few months, but I’m not sure exactly how right now. Don’t worry about us, we have plenty of money and will be living quite comfortably wherever we end up.
One of my greatest regrets is having to resign from the firm. Practicing law with my two sons has been a dream come true and it pains me that it must come to an end. I have assigned my interest in the firm to both of you and deposited $200,000 into the firm bank account as a parting gift so you won’t be strapped for cash.
Finally, we have deeded our home to both of you. It’s paid for so you can sell it or one of you can live in it. Your choice.
Good luck, we’ll miss you.
Love,
Dad
Ryan ripped the letter out of Matt’s hand and read it again angrily. “No! This can’t be happening. That goddamn Amanda. I could kill the fucking bitch! Look what she’s done.”
“You blame Amanda for this?” Matt asked.
“Yes. I’m sure she’s the one who leaked Mom’s notes to the Inquisitor. Who else could have done it?”
Matt shrugged. “I don’t know.”
“I can’t believe they left the country,” Ryan moaned.
“I actually knew they were thinking about it,” Matt confessed. “Dad came to me and wanted my help in getting new identities and transport out of the country. I got him the information, but I didn’t think they’d act on it so quickly.”
“Why didn’t you tell me? I might have been able to talk them out of it.”
“Do you think that would have been wise?”
Ryan didn’t answer.
“Well, there’s nothing we can do about it now and we’ve got Cindy’s trial coming up next week, so we’ll have to put it out of our minds. After the trial we can brainstorm and perhaps look into who else might have killed Aunt Martha. If we can find the actual killer, then that would clear Dad’s name and he and Mom could then come home.”
Ryan nodded dejectedly. “I know you’re right, but it’s not going to be easy to focus with Mom and Dad as fugitives.”
“I know, but you read Dad’s letter. They have plenty of money and they will be fine.”
Ryan left, and Matt started to work on his trial outline. He had to make a final decision on his witnesses, decide in what order to call them, and work up an outline of the questions he wanted to ask. When that was done he had to work on an opening statement. This didn’t sound all that complicated, but in reality it was a lot of work and could take several days. Thoughts of his own exile after being released from prison tried to push their way into his mind, but he took a deep breath and concentrated even harder on the task at hand. Several hours later Melissa informed him he had a call from Sylvia Sams of the Inquisitor. He frowned, wondering what she wanted.
“Mr. Coleman. We are about to publish a story about your father’s failure to report in with the court this morning. Our sources tell us that your father and mother have left the country.”
Matt sighed. “What sources?”
“I can’t say, but is it true? Have they left the country?”
“Yes,” Matt spat. “Apparently they have.”
“So, how did you find out?”
“I can’t say. I have to protect my sources.”
Sylvia laughed. “Okay. I understand. Thank you.”
The line went dead and Matt slowly hung up the phone. He couldn’t wait to see the Inquisitor story. It was sure to be a gem.
On Thursday Matt called the court to announce to the court coordinator that they were ready for trial. The coordinator told them they were number one and would definitely be going to trial. A wave of anxiety washed over Matt, as this would be the first trial for both him and Ryan. It would have been bad enough even with their father there to guide them, but now they’d be alone. He wondered how that would work out, but then thought of the challenges he’d faced in prison and was able to meet. In comparison this was nothing. Win or lose, he and Ryan would walk out of the courtroom just as healthy as ever. The only thing at stake was money and their reputation, both of which could be restored in time.
On Saturday before the Monday trial setting, Matt, Ryan, and Cindy met to go over Cindy’s testimony. In a criminal case she wouldn’t have testified, but since she was the plaintiff in the civil suit she had no choice but take the stand. It was risky since Richmond could take her on cross-examination and try to make it look like she had killed Lucius Jones. Therefore, Matt and Ryan were taking particular care to make sure she was fully prepared.
They did this by Matt taking her through her direct examination and Ryan handling cross. In direct examination, Cindy had to be somewhat emotional and get across to the jury what horrible things RMS had put her through and the damages she suffered, but on cross she had to be calm, attentive, and unemotional to avoid being led astray.
Ryan did his best to hit her with the hard questions that he knew Richmond would be throwing at her. At first, Cindy had trouble with this line of questioning, but they kept practicing until Cindy seemed to have it down. Of course, Matt knew that there was a big difference between practicing and actually being in trial. Often clients would get completely rattled during the heat of trial and forget everything they’d been taught. He prayed this wouldn’t happen to Cindy. At the end of the session Cindy asked how they thought the trial would go.
“I think it will go all right,” Matt replied. “I think once we tell the jury the whole story they’ve got to be outraged.”
“What about the accusations that I killed Lucius?”
Matt shrugged. “You didn’t kill him, right?” he asked, knowing what her response would be but wanting to hear her profess her innocence one more time.
“No, but it looks bad that I was in the neighborhood when it happened.”
“The reason we have jury trials is that juries are good at reading witnesses. A witness may deceive one or two people, but it’s hard to deceive a dozen. If you didn’t kill Lucius Jones, the jury will know it.”
Cindy sighed. “I’m so worried. If we don’t win this trial I don’t know how the kids and I will survive. It’s bad enough not having Tony around to help out, but with not enough money to pay our basic necessities . . . Shit! Have you seen the price of gasoline?”
“Yes. Three dollars a gallon. I never thought I’d see that,” Matt laughed. “My dad said when he was a kid gasoline was twenty-nine cents a gallon and if there was a gas war it dipped to nineteen cents.”
“Jesus. That’s hard to believe.”
“I know.”
“How is your dad, anyway? I heard he skipped the country.”
“I don’t know, but unless he gets caught, I’m sure he’ll be fine.”
“I guess everybody’s got problems,” Cindy mused.
“That’s for sure,” Matt said, smiling at Cindy. “Don’t worry. I have a good feeling abo
ut your case.”
Cindy took a deep breath. “I hope you’re right.”
On Monday Matt arrived at eight a.m. at the Dallas County Courthouse. The case had drawn more media attention than would normally have been expected for a civil case because of the allegations from RMS CEO Samantha Jones that Cindy Sharp had killed her husband. Not wanting to face the media, Matt arrived early and came in through the parking garage to the courthouse and climbed the stairs to the fourth floor where the trial was to be held. Ryan and Cindy Sharp arrived about a half hour later. Richmond, Samantha Jones, and two associates at Richmond & Richmond arrived about eight forty-five a.m. and set up on the defense table. The gallery was full of media and spectators.
Samantha had dressed in a black silk dress, matching shoes, nylons, and purse, and dark glasses. She looked very much like the grieving widow, although Matt knew she had shed few tears after Lucius’s death. She looked over at him, but he couldn’t read her expression behind the dark glasses.
At nine a.m. the judge made his appearance and called the case. Both parties announced ready, so the judge passed out jury packets. It took all morning and into the midafternoon to pick the jury. Many people had strong opinions about mortgage companies, and an equal number disdained deadbeats, making the jury pool a minefield for both sides. When the last juror took his seat, the judge looked over at Matt and said, “Mr. Coleman, you may give your opening statement.”
Matt rose. “Your Honor, ladies and gentlemen of the jury. First, let me thank you again for your jury service. Cindy Sharp is very appreciative of the contribution and sacrifice you are making by being here today. Now, during voir dire you learned a little about what this case is all about, but now I’m going to tell you what we expect to prove as we call our witnesses over the next couple of days. Before I begin, though, I want to remind you that what I tell you and what Mr. Richmond tells you is not evidence. Only what you hear from witnesses or can glean from the exhibits that are admitted are evidence that you can rely upon.
“This case is brought under a law enacted by our state legislature called the Texas Debt Collection Practices Act or what I will refer to as Unfair Debt Collection Practices. We are also suing under the common law tort of unreasonable collection. At the end of the trial you will be asked to answer a series of questions designed to determine if this statute has been violated or if the defendant is guilty of unreasonable collection. If you determine that there has been a violation or the defendant has committed the tort of unreasonable collection, then you will also be asked to determine what damages should be awarded to her. So, listen to the witnesses carefully and review the exhibits placed into evidence so you will be prepared to answer the questions at the end of the trial.
“Now, our first witness will be the plaintiff, Cindy Sharp. She will testify that she is a schoolteacher and has three small children. She was married to a wonderful man, Tony Robert Sharp, a master bricklayer working at the time for Arrow Construction Company. They had been married for eight years and were happily living the American dream with a beautiful car, wonderful children, and a bright future ahead of them. Tony had worked for Arrow for fifteen years but when the construction industry collapsed last year, Arrow filed for bankruptcy relief and Tony was laid off.
“Tony was a proud man, so it was with great regret that he went on unemployment. Unfortunately, unemployment compensation was only about a third of his normal pay, so the Sharps struggled to pay their bills. Even so, they cut their expenses way back to make ends meet and were doing okay until Tony’s unemployment ran out. Then they began to get behind on their bills.
“Luckily, the Sharps had good credit, hadn’t maxed out their credit cards, and were therefore able to make ends meet for a while by taking advances on their credit cards. This allowed them to keep their house note current. And it remained current until their mortgage company, North American Servicing, or NAS, sold their note to Reliable Mortgage Servicing, known to its customers as RMS. Unfortunately, by the time the notice of the sale to RMS got to them they had already made their May payment to North American Servicing. Since they had paid the payment by money order, they couldn’t stop payment on it. Cindy, of course, immediately called North American Servicing to explain the situation and were assured that the payment would be promptly forwarded to RMS. But that didn’t happen.
“Instead, they immediately started getting late notices and telephone calls claiming they were a month behind. So, Cindy will testify that she called the customer service line at NAS again and the person answering the phone acted like she had never called them before. So, she had to start all over again and explain what had happened a second time. This, obviously, was exceedingly frustrating and caused the Sharps much mental anguish. Finally, after being left on hold and transferred from one representative to another, someone finally checked their computers and acknowledged that they had received the check but that the funds hadn’t been remitted to RMS as of yet, although it had been nearly ten days. Again, Cindy Sharp was assured the payment would go out the following day.
“But that didn’t happen, and the Sharps continued to get late notices; each time, they got one a new late fee or charge was added to the balance due. But what really upset them was when they got a notice that RMS had paid their property taxes three months before they were due and were increasing their house payment by $350 per month! Obviously, if they were struggling with a $1,202 house payment, you can imagine how a $1,552 payment looked to them.
“If all this wasn’t enough, in January Tony had been diagnosed with prostate cancer and had to have surgery right away and was out of commission six weeks. During that time Cindy had to put the kids in after-school care. Between that expense and the deductibles for Tony’s medical treatments, the Sharps used up their tax refund and missed another house payment.
“Being a responsible woman, at this point, Cindy called RMS and explained the situation but got little sympathy. She will testify that they passed her around for a while until she finally talked to a representative, Joan Londry in the modification department. She said they had a hardship program for people in situations like theirs and she didn’t see why they wouldn’t be eligible for it. She said the way the program worked was they would take the delinquency and tack it on to the end of the note so once the modification took place they would be current and only responsible for regular monthly payments. Needless to say the Sharps were greatly relieved by this news and thought they were finally seeing the light at the end of the tunnel.
“So, Joan Londry sent them the paperwork, and Cindy filled it out and sent it back along with lots of other documentation they wanted. Cindy later called Joan to be sure she had received the package and she acknowledged that she had all RMS needed to start the loan modification process. When Cindy asked how long it would take, Joan told her it would be no more than thirty days to process and that during that time the Sharps didn’t need to make any mortgage payments, as whatever was outstanding would be tacked on to the end of the note at closing.
“Well, when thirty days passed and there was no word on the approval of the modification, Cindy will testify that she called Joan, but Joan wasn’t available so Roger Wynn, the representative who finally took her call, checked the computer but couldn’t find any record of the modification package ever being received! She, of course got very upset, but Roger assured her if she would just send in a new application everything would be fine and he would note in the computer that a modification was in process.
“Angry and frustrated, Cindy sent them another modification package by FedEx and tracked it to make sure they got it. Then, just to be sure, she called Roger, who confirmed that RMS had the application and supporting materials and everything was okay.
“But a week later Cindy was shocked and dismayed to get a letter from an attorney advising them that they were sixty days past due on the mortgage, RMS had no proof of insurance on the dwelling, and that they were considering accelerating the note and foreclosing.
> “Cindy will testify that she had been handling this mess as Tony was sick, but when Tony saw this letter he went absolutely crazy. He was recovering from surgery and already a mental wreck from losing his job, so this undid him. At first it was anger, then depression, and finally withdrawal. He’d just sit on the sofa all day with a somber look on his face. He quit shaving, hardly spoke to the children, and would only get up to go to the bathroom and go to bed. Cindy wanted him to see a psychiatrist, but he refused.
“Angry and frustrated, Cindy told Tony he had more time to deal with the mortgage company than she did, so he should call them, but she got little reaction. He just didn’t seem to care anymore.
“When Cindy finally found time to call RMS again, a man named Ahmad Sheik took the call and said not to worry about the attorney letter, as it was just routine. He said the computer automatically sent any account over sixty days to their attorneys but as long as they were processing a modification, they wouldn’t have to worry about foreclosure.
“But by this time Cindy didn’t trust them, so she asked for something in writing. In response she got a form letter acknowledging the receipt of the modification package and stating that as long as it was being processed RMS would not foreclose. This letter eased her concerns and, having other problems, she tried to put it out of her mind, concentrating now on getting Tony out of bed and functioning normally again.
“Another few weeks went by and, not hearing anything, she called Ahmad, but he was not available and she finally ended up with Tom Jones. She wondered if this was his real name, but didn’t say anything. Again, Tom advised her that there was no record of her modification being in the works. . . . Angry and frustrated beyond imagination, she asked for a supervisor and a Lois Ross came on the line. Lois agreed with Tom that they had no record of their modification application. As you can imagine, when she said that, Cindy was so outraged she could hardly maintain her composure. When Lois asked her to send in another modification packet she wanted to cry, but she had no choice but to do it.
“The next day she faxed the packet to them for the third time and got a confirmation that it had been received. But just when she had begun to relax a bit she got the mail and there was a notice of certified mail at the post office. The notice scared her, but it was impossible for her to get to the post office until the next morning. Neither she nor Tony slept a wink that night wondering what was in the certified notice. When she finally opened the certified letter the next day she discovered it was a default letter and a notice of trustee’s sale!
“When Cindy got back home she immediately called the supervisor, Lois Ross, whom she had talked to two days earlier, and Ms. Ross acknowledged that she had the paperwork and not to worry about the foreclosure notice. Ms. Ross assured her the modification application would stop the foreclosure.
“But it didn’t. Several weeks later Tony noticed a man taking photographs of their house. That upset him so he confronted the man, who identified himself as Simon Artis, and was told that RMS had hired him to do an appraisal of the property. When he asked him why they would do that, he advised him that their house had been foreclosed and that RMS was putting the property on the market for sale.
“Tony told the man they had a modification in progress and that RMS had promised not to foreclose, but Artis just laughed at him and said they had ten days to get out or he’d go to the justice of the peace and file an eviction suit. At that point Tony got mad and told Mr. Artis that if anybody set foot on his property he would shoot them.
“Of course, he wouldn’t actually have shot anyone. He was just angry, frustrated, very upset, and worried about what was going to happen to them. They had no money and if they were evicted they’d probably be out on the street.
“When Cindy found out what had happened, she called Lois at RMS again and asked her why they had foreclosed when they had agreed not to. She apologized and said it was just a mistake and that Cindy should send them a letter explaining what had happened and asking for them to set aside the foreclosure sale.
“It seemed like a colossal waste of time to Cindy, but she did what Lois asked. Unfortunately, the letter did no good and RMS still filed the eviction suit and set it for hearing in ten days. At the hearing Tony told the judge what had happened, but the judge said his hands were tied and gave the Sharps seventy-two hours to get out of the house.
“Unfortunately, the Sharps didn’t have money to rent a storage unit until Cindy got her next paycheck at the end of the month, so they weren’t able to move out. After the seventy-two hours expired, the family slept at the Kamona Motel. It wasn’t a very nice place, but it was cheap. The next day when they went to the house to start packing they found it padlocked.
“At that point they called Simon Artis, but only got his voice mail. They slept another few days at the motel, but by the fourth night they were out of money and had to sleep in the park. On the fifth day they went by the house and the constables were there removing everything and placing it out in the yard for scavengers to pick up. When Tony saw them throwing their stuff out on the lawn, he became outraged and started yelling and arguing with the constables. They told him to back off, but instead he took a swing at one of them. Of course, with that he was arrested and hauled off to jail.”
Several jurors frowned and squirmed in their chairs. Matt took this to be a good sign. Perhaps the horror of Cindy’s story was sinking in.
Matt continued. “Cindy and the kids slept in the park again that night. In the morning Cindy took them to school and then went to work. Later that day she got a call from someone at the jail informing her that they were letting Tony out and that she should come pick him up. But when she got there he was gone. Panic stricken, she drove around looking for him, but never thought of going back to their house. Late in the afternoon the police called and told her they’d found Tony back at their house. He’d broken in, climbed the stairs, tied a rope around his neck, secured the other end to a railing, and then jumped off.”
There was a gasp from someone in the gallery, and one of the jurors put her hand to her mouth. Cindy wiped a tear from her eye, struggling to maintain her composure. Matt paused to let the scene sink into the jurors’ minds.
“Tony was dead when the officers found him.”
Matt took a deep breath, feeling his voice starting to crack, and then continued. “Of course, they wanted her to come to the morgue to identify his body. You can imagine Cindy’s reaction.”
The gallery stirred, and the judge banged his gavel. “Keep your emotions to yourself or you’ll be asked to leave the courtroom,” the judge warned. Matt looked at the judge, who nodded that he could continue.
“Now, no amount of money can compensate Cindy for what she has gone through and for the loss of her husband, but money is all you have as jurors to work with. If you find RMS acted in a manner that violated the law, all you can do is make sure Cindy Sharp gets enough money to compensate her for her loss and that RMS pays enough to deter them from violating the law and acting so callously in the future.
“Mr. Richmond, the RMS attorney, will point out that there were other factors that caused Mr. Sharp to commit suicide, and we do not dispute that. But one thing we are sure about, and we believe you will also be equally certain when you begin deliberations, is that had RMS honored their forbearance agreement Tony would be alive today.
“RMS has also done something rather ingenious. You’ve all heard the saying that the best defense is a strong offense. Well, RMS’s CEO has taken that to a new level by filing a lawsuit against the plaintiff for the wrongful death of her husband. I’m sure you have all read the newspaper stories about Lucius Jones’s murder. In order to distract you from what this lawsuit is all about and gain sympathy for RMS, Samantha Jones, RMS’s CEO, has filed a lawsuit and instituted a media campaign trying to prove the plaintiff, Cindy Sharp, killed Lucius Jones.
“But don’t believe a word of it. Believe this: When the government mandated that mortgage companies try to
do everything they could to help home owners keep their homes, Lucius Jones, with his wife’s blessing, instituted what is called dual processing. What that means is RMS would comply with the government mandate and take modification applications but would continue the foreclosure process—hence ‘dual processing.’ The problem with this was since RMS controlled the application process for modifications it could make sure the foreclosure would be processed before the modification. In reality what this meant was the government-mandated modification program was a sham.
“We will call witnesses who will show how Lucius Jones and, now his wife Samantha, profited from these foreclosures in a way that was completely and manifestly unconscionable.
“Now, that’s a summary of what’s to come. Unfortunately, to present all of this evidence to you will take time and might get a bit tedious. Let me apologize for that in advance, but it’s necessary to prove our case by a preponderance of the evidence, which is the standard you will be applying when you start deliberations. Please be patient and attentive no matter how redundant it may seem. All the pieces of the puzzle will fall into place in the end. I promise you. Thank you.”
Matt sat down, and the judge looked at Richmond. “Counsel, do you wish to give an opening statement?”
“Yes, Your Honor,” Richmond said, getting to his feet. “Your Honor, ladies and gentlemen of the jury, Samantha Jones and the other owners of RMS would also like to thank you for your sacrifice in serving as jurors today, but also express their regret that you have to be subjected to the fiction and fabrications of the plaintiff’s counsel. Of course, we know writing fiction runs in the Coleman family.”
There was laughter in the gallery. Anger welled in Matt, causing Ryan to put his hand on Matt’s arm to keep him from getting up and responding with his fist.
Richmond looked at Matt and smiled. “Now we are exceedingly sorry that Cindy Sharp and her family suffered from the collapsed economy, but that’s hardly the fault of the defendant. Millions of Americans lost their jobs, and millions more had their homes foreclosed, but you can’t blame all their suffering on the mortgage lenders. That is simply irrational. Who knows who was at fault for our economic collapse—the president, Congress, greedy corporate executives, or imprudent consumers?
“We are all sorry that Tony Sharp got prostate cancer, but you can’t blame his prostate cancer on RMS. That’s simply silly. And you can’t, with any degree of credibility, contend that RMS is responsible for Tony Sharp committing suicide, either. It is simply impossible to determine what went on in his mind and what precisely caused him to take his life. It could just as easily have been something Cindy Sharp did that threw him over the edge. We’re not blaming it on her, of course, but simply saying that there is no way to know why he committed suicide.
“What we have here is a simple contract situation. Pacific Glen Partners lent money to the Sharps to purchase their home. North American Servicing serviced the loan. That loan servicing was later assigned to RMS, who now acts on behalf of Pacific Glen Partners. The loan was secured by a deed of trust. When the parties closed the loan, the terms were set in concrete and couldn’t be changed. Before closing the Sharps could have objected to the loan documents, but they didn’t, so they had an obligation to comply with the note and deed of trust as it was written.
“We will show that the deed of trust does not allow any modification of the loan without the written consent of both parties. We will show that the document specifically states that any modification negotiations do not relieve the mortgagor of any obligations under the note and there is no waiver by the mortgagee of its rights and remedies provided in the deed of trust, including foreclosure. Therefore, the fact that RMS was considering a modification didn’t prevent it from continuing its foreclosure proceeding. It’s unfortunate that there were delays in the modification process, but we will show those delays were unavoidable and not intentional as plaintiff’s counsel would suggest.
“We will also put on testimony that the plaintiff, Cindy Sharp, become so obsessed with blaming her problems on RMS that she threatened Lucius Jones, the CEO of RMS who was later murdered. And we will show that Cindy Sharp was within a block of RMS’s offices at the time of the murder and that she is a person of interest in that criminal investigation.
“It’s sad but not uncommon for someone to try to blame their troubles on another. In this case Cindy Sharp sees RMS as her ticket to a bright financial future. We are sure that once the evidence has been presented you won’t buy into Cindy Sharp’s well-calculated scheme to rip off RMS. Thank you.”
The judge looked at his watch. “Okay. It’s nearly five so we’ll reconvene tomorrow morning at nine.”
The judge left the bench, and the gallery began to empty. Richmond looked over at Matt and whispered something to his associate. She laughed.
Matt turned to Cindy and smiled. “Well, what do you think?”
“I don’t know. When you were giving your opening I felt good, but when I heard Richmond’s argument I felt like shit. Do you think he’s right, that I’m trying to blame all my troubles on RMS?”
“No. I think they violated the law and caused your husband to commit suicide.”
“Let’s just hope the jury feels that way,” Cindy said worriedly.
Unconscionable, A Rich Coleman Novel Vol 3 Page 32
