Foreclosure: A Novel

by S. D. Thames

  “It is a deposition.”

  “I hate depositions.”

  David made sure he had Frank’s attention. “I have to warn you: this Vasquez guy is a dangerous lawyer.”

  Frank paced the sidewalk. “So this works out great for you. More hours to bill me before I get paid.”

  David shielded his eyes from the afternoon sun. “Yeah, we need to talk about that. I’m getting heat about the July invoice. I’m going to need permission from the firm to even defend this deposition if you don’t get caught up on your bills.”

  Frank stared at the traffic passing by on Main Street. “I can’t pay,” he said.

  “What?” David raised his voice over the rumble of the departing bus.

  “I said I can’t pay you. Not until we get paid by the insurance company.”

  “Frank, I like you and all, but I’m not doing this pro bono.”

  Frank looked ready to get something off his chest. “I know you’re not. But you said it yourself: we have to pay back the deposits to all the south tower purchasers now. I can’t wait around with my dick in my hand for the insurance company to pay. I have no choice. It’s going to take every dime I have to pay those deposits back.”

  “Well, you could go to the investor or whoever the hell it is and get the escrow monies back.”

  Frank chuckled. “You have no idea what you’re talking about, do you? I’m broke, David. I own a hundred houses that are worthless, and the pride of my life was blown to hell by people who want paid. I’m out of options. Unless you’ve got a better idea.”

  “I might.” David waited to make sure Frank was paying attention. “But it will cost you more.”

  Alton winced as if his head were in a vice. “You’ve lost your mind.” His fingers interlocked tightly behind his head.

  David didn’t know why, but he felt like he already had Alton on the ropes. “Hear me out, Alton. We could make a lot of money doing this.”

  Alton stood and paced around his desk. “We don’t do contingency-fee cases. We never have, and we never will.”

  “Look, you said it yourself: times have changed. To be competitive, we’re going to have to change. There’s a lot of money to be made here.”

  “There’s a lot of money to lose, too.”

  David took a breath. He wanted to back up. “He’d pay his bills for the lawsuit with the bank. He’ll get current on that and stay current. That should make you happy.”

  “Status quo, David.” Alton pointed to the walnut cabinet in his corner. “This cabinet is filled with hundreds of files of people who were status quo. That’s not what we do here.” He leaned over the cabinet and knocked on it.

  David met Alton at the cabinet. “It’s a thirty-million-dollar claim. We’d get at least thirty percent of any recovery. Pinnacle will be making more than it would if it sold the units. And look at the cut we’d get. Ten million dollars, Alton. That would be enough to get us through the rest of the recession.”

  “And what would you get?” Alton seemed curious more than anything.

  “Guaranteed partnership. Plus ten percent of our recovery.”

  “You obviously have this all thought out.”

  “I should get origination credit. That’s the credit I’d get if I were partner.” David pulled on the top file drawer. It didn’t budge. “There will still be millions for the firm.”

  Alton grabbed David’s hand and removed it from the cabinet drawer. “Wouldn’t you like to know?”

  “Honestly, I wouldn’t. I have enough fodder for nightmares involving you.”

  Alton smirked. “Everyone thinks I’m the bad guy.” He patted the top of the cabinet a few times. “You might be surprised what’s in here.”

  David tried to get him back on track. “Alton, do I need to tell this guy to find another law firm to make an easy ten million?”

  Alton ran his fingers through his black hair. “Let me discuss this with Mackenzie and Terry.”

  Back in his office, David pored over the account statements he’d received from Katherine before the fire. At least according to the statements, Xerxes Capital had accounted for every penny of the deposits held in escrow.

  “What are you working on?” Terry was waiting in the doorway.

  “What else would I be working on?” David turned the account statements over on his desk.

  Terry took a seat. “Just had a tough talk with Alton and Mackenzie.”

  “Aren’t they all?”

  “Not like this one.”

  David rubbed his eyes. “So I take it the answer is no.”

  “Actually, I wish I could say that it was, but they’re going to give you a shot at this.”

  David sat up. “What do you mean a shot?”

  “It means, you lose this one, if the firm loses money on this case, then you’re done, David. You’re out of here. No severance. They’ll cut ties with you. Game over.”

  “I get it. And if we recover?”

  “You get your wish. They’ll make you partner. And you’ll get your fifteen percent.”

  “I asked for ten percent.”

  “You didn’t ask for enough.” Terry paused and grinned. “And I convinced them of that.”

  David wanted to smile, but Terry’s grin turned to a grimace. “Why don’t you seem excited about this?” David asked.

  Terry took a deep breath. “With all due respect, kid, you’re already in way over your head.”

  “How about a vote of confidence?”

  “It’s not you I’m worried about. It’s your client.”

  “What about him?”

  “I don’t like what I hear about him.”

  “He’s no saint, but then again, who is?”

  Terry crossed his arms. “He looked as guilty as sin.”

  “That’s the beauty of it. Get this guy off the hook, I can do anything.”

  “Did he do it?”

  “Honestly, Terry, I don’t think he did. He definitely has his faults. But blowing up the Towers—not to mention his daughter—doesn’t strike me as one of them.” David could see Terry wasn’t buying it. “You just have to trust me on this. I know he didn’t do it.”

  “And you can prove it?”

  David nodded. “Besides, the burden’s not on us.”

  Terry shook his head slowly with a look of disappointment. “The burden’s always on you, kid. It’s always on you.”

  The morning of the deposition, David stopped Frank in the hallway outside the conference room for last-minute coaching. “Just remember everything I told you. Listen to the question. Don’t feel the need to explain anything. Just answer what they ask and nothing more.”

  Frank blew him off and pulled the door to the conference room. “Let’s get this over with.”

  Frank started to enter, but David pushed the door closed. “Frank, don’t forget. If you lie about anything today, anything material to their investigation, they will cancel the policy and deny your claim. This is a trap, Frank. Don’t fall into it.”

  He waited for Frank to nod before he opened the door.

  Inside, Vasquez was sitting at the conference table with a row of three-ring binders lined up in front of him. A bald man with a sports coat sat to his right. Vasquez stood and extended his hand.

  David shook it and introduced himself.

  Vasquez squinted at him. “Have we met?”

  “A while ago,” David answered. “This is my client, Frank O’Reilly.”

  Frank shook hands and Vasquez introduced his guy, a claims adjuster for the insurance company.

  Vasquez was dressed to the tee, a thousand-dollar suit, two-toned shirt and collar, and polished cuff links. Ten years later, he was still the very picture of a man who warranted eight hundred bucks an hour. He took his seat, all business. “Mr. O’Reilly, you know why we’re here. I wish I could tell you this won’t take long, but I can’t. In a minute, the court reporter will swear you in, and I’ll ask you a series of questions under oath. This is our right under the insu
rance policy. Before we begin, do you have any questions for me or my client?”

  Frank took a hard look at Vasquez. “I don’t.”

  “Then swear him in.”

  David listened to Vasquez sail through the introductory questions about Frank’s background, education, and his role in the company. Vasquez peppered questions like an automatic rifle. He was good at this, and David was already sensing he was one of the best he’d ever heard. He’d be a formidable opponent at trial, if it got that far.

  “Well, let’s not dilly-dally around, Mr. O’Reilly. Sales at Gaspar Towers were down?”

  Frank fought off a coughing spell. “Sales were where we expected them to be as of January 1, 2008. The housing crash was a huge disappointment. Sales turned out to be entirely consistent with the crash.”

  “Your lender, Meridian Bank of Miami, initiated a foreclosure proceeding against the Towers?”

  “We sued them first. They were acting in bad faith. But yes, they asserted a counterclaim to foreclose.” Perfectly answered, just as David scripted.

  “And Pinnacle has been unable to make timely payments throughout 2008?”

  “Due to Meridian’s conduct and failing to approve sales of units at prices consistent with current market conditions.” Again, right off the script.

  Vasquez grinned. “So that’s a yes?”

  “Yes, we have been unable to pay the mortgage due to Meridian’s conduct.”

  David was ready to buy Frank a drink.

  “Meridian, of course, is a loss payee under the policy?” Vasquez said, his intonation trailing off.

  “Is that a question?” Frank asked.

  “Of course it is.”

  Frank glanced at David. “I believe that’s correct. They at least should be.”

  Vasquez turned the page in his outline. “Who knows the most about Pinnacle’s financial affairs?”

  “Apart from myself, that would have been Katherine.”

  “Katherine Hawkins?”

  Frank nodded. “That’s correct.”

  “And she was your daughter?”

  “That’s correct.”

  “And she was killed in the fire that resulted in the loss?” Vasquez’s tone had turned accusatorial.

  Frank lunged out of his chair, ready to slug Vasquez. David pulled him back and said, “That’s uncalled for.” Frank didn’t say a word because David had coached him not to say anything untoward on the record. Still, he looked ready to spew venom at Vasquez.

  “Is there a problem?” Vasquez asked. “Did you not understand the question?”

  David slowly pulled Frank into his seat.

  “Yes.” Frank slowly exhaled. “She died in the fire.”

  “How would you describe your relationship with your daughter?”

  “We had a strong relationship, professionally and personally.”

  Vasquez smirked at Frank. “You didn’t know her most of her life?”

  “Is this really relevant?” David said.

  Vasquez glanced at the court reporter. “Off the record.” Then he turned to David. “Show me where in the policy it says I have to ask relevant questions? This isn’t a deposition.”

  “I know what it is, but give me a break.”

  Vasquez’s face turned bright red. “Don’t interrupt me again, you hear me? You don’t even have the right to be here. So shut your mouth, schoolboy.”

  David tried to stand his ground, but he was shocked by Vasquez’s reaction.

  Vasquez regained his composure with a deep breath. “Back on the record.” He smirked at Frank again. “You need the question repeated?”

  Frank lowered his head. “I didn’t know her until a few years ago.”

  Vasquez kept his eyes on David for the next question. “Did she ever voice concerns to you about the handling of the escrow deposits for Gaspar Towers?”

  Frank paused for a moment. “She probably voiced concerns to me about every aspect of the development. She was very detailed and conscientious. That’s why I hired her.”

  Vasquez’s glare was locked on David. “You’re also involved with dozens of lawsuits with purchasers seeking the return of their escrow deposits?”

  “That’s right. They are disgruntled purchasers who signed their contract when the market was high. Now they want their money back.”

  Vasquez finished jotting something down and looked up, nodding and grinning, like that was the exact response he’d wanted. “Now, that’s an interesting description you just gave. Couldn’t that just as well describe Pinnacle Homes & Investments?”

  “I’m sorry,” Frank said. “I don’t understand the question.”

  Frank might not, but David did, and it was a bull’s-eye.

  “Sure, I’ll repeat it.” Vasquez glanced down at his notes, and then locked eyes with Frank. “You said the purchasers were disgruntled—they signed their contracts when the market was high and now they want their money back. My question is this: isn’t Pinnacle Homes & Investments just another disgruntled investor? It signed its mortgage when the market was high, and it wants to back out of its contract now that the market has crashed?”

  David held his breath for Frank’s answer.

  “We’re not disgruntled, Mr. Vasquez.” Frank leaned forward. “We are dealing with the economic conditions. Do we think certain terms of the mortgage should be changed in light of these conditions? Yes. But we also want to offer similar concessions to our purchasers. Only the damn bank won’t allow it. They’ve made it impossible for us to close on these units. They’ve forced us into foreclosure. We’re not some whining company regretting its deal. We’re just trying to cope with the worst financial crisis since the Great Depression. So the answer to the question is, no, we’re not disgruntled.”

  Vasquez sat stone-faced for a moment, keeping Frank waiting. “Are your investors disgruntled?” he finally asked.

  “You’d have to ask them,” Frank said.

  Vasquez reclined in his chair and locked his hands behind his head, almost like he was waiting for a hummer. “Do you know a company by the name of Xerxes Capital?”

  “Of course I do,” Frank said. “They’re our escrow agent.”

  “Are they also an investor in Gaspar Towers?”

  “Not at all,” Frank said.

  “Not a controlling investor?”

  “I said they are an escrow agent. And that’s all they are.”

  “Have you ever met them?” Vasquez asked.

  “No, I have not. Not personally.”

  “Do you know anyone who has?”

  Frank seemed perplexed by the question. “Not that I can recall. You talk about them like they’re the boogeyman or Loch Ness Monster.”

  “Are they?” Vasquez held a grin for what seemed a minute. All the while, Frank sat quietly, disturbed, seemingly unwilling to respond. It must have been clear to Vasquez that he wasn’t getting an answer, and he probably didn’t even want one. Frank’s anxiety was telling him all he needed to know. So Vasquez continued: “I’ll tell you what. Are you willing to produce all correspondence between Pinnacle and Xerxes Capital?”

  “If it exists,” Frank said.

  “You promise me you’ll do your best to find them? Because your counsel here will tell you that if you don’t cooperate with every such request, we can deny your claim under the policy.”

  “Fuck the policy,” Frank murmured to David. David shook his head, and Frank raised his voice and said, “I will.”

  Vasquez dropped his pen and closed his notebook. “Mr. O’Reilly, there’s no doubt I’ve been asking some loaded questions today concerning your financial motive for causing this fire.”

  “Is that what you’ve been doing?” Frank said in his dumbest tone. “I don’t understand the games you lawyers play.”

  “And as you know, we’re all waiting for the fire inspector to conclude his investigation in this case. By the way, have you been interviewed recently by the fire investigator or any law enforcement officials?”
/>   “Yes,” Frank said.

  “Well, you would agree with me, sir, that if the officials conclude that this fire was incendiary, that it was caused by a human and not an accident—if that’s their finding, then you understand that my client will have to ask the question, who was responsible for this fire?”

  “That would be a logical question.”

  “And you would agree with me, would you not, Mr. O’Reilly, that your company would have the most obvious motive for causing the fire?”

  Frank groaned as though he’d just spent his last ounce of patience. “Mr. Vasquez, I don’t know if you really wanted an answer to that stupid question. So I’ll ask you one.”

  David started to grab Frank, but Frank pulled him off.

  “And that is, if the fire inspector concludes that I, and my company, had nothing to do with this fire, will your client finally pay our insurance claim?”

  Vasquez smiled politely. “I’m not here to answer your questions.”

  “Do you have any other legitimate questions for my client?” David asked.

  “That’s about it for today,” Vasquez said.

  Frank stood. He glanced at the court reporter to make sure she was still typing. “And here’s something else you’re missing, Mr. Vasquez. That development, Gaspar Towers, was the culmination of my life’s work. Every profit I ever made went into those condos. And if you think that I’d destroy that to recover under an insurance policy, you don’t know me very well.” Frank’s voice was rising. “And if you think I’d be responsible for the fire that killed my daughter, my only flesh and blood, then I’d like to invite you outside to teach you something about respect. And I can guarantee you, you won’t walk away from our meeting with that goddamned smirk on your face.”

  David grabbed Frank and pulled him to his seat. “That’s enough, Frank.”

  Vasquez’s face turned apologetic. “I’m not just talking about you and your motives, Mr. O’Reilly, I’m talking about Pinnacle Homes & Investments.”

  “I am Pinnacle Homes & Investments!” Frank screamed.

  Vasquez resumed his sinister smile and bowed slightly, as though thanking Frank for the golden answer he’d just given. “Thank you, Mr. O’Reilly. That’s all I need for today.”