Foreclosure: A Novel

by S. D. Thames

  By ten after nine, David realized he wouldn’t be able to do anything in the office but stare out his window at the September morning sky and wait for the process server to arrive.

  “Did we get paid yet?” Alton stood in David’s doorway, holding the top of the doorframe like an orangutan hanging from a tree.

  “It’s only been twelve hours.”

  Alton released his grip. “It only takes one to issue a wire.”

  “Alton, you’ll be the first to know.”

  Just then, Beatrice slipped past Alton. “Excuse me, sir.” She held a stack of papers for David. David knew what they were, and he didn’t want Alton to see them.

  “I just signed for this for you.” She turned to Alton. “It looked very important.”

  David stood and reached for the pleading. “Thank you, Beatrice. I’ll take that.”

  “It appears to be some kind of lawsuit against Pinnacle Homes,” she told Alton, causing his ears to perk up. He snatched the package before David had a chance to take it. He skimmed the first few pages and then slowly looked up at David.

  “Get Terry and meet me in my office in ten minutes.”

  Alton was reading the complaint at his desk, probably for the tenth time. David still hadn’t had a chance to even skim it. Alton nodded his head repeatedly while saying every thirty seconds, “This isn’t good. This isn’t good.”

  “Can I take a look at it already?” David asked.

  Alton looked at David and then to his doorway. “Where the hell is Jenkins?”

  “He said he’d be right here. He had to make a call.”

  Alton started from the beginning. David tried reading the complaint upside down. Continental Indemnity Co. of America sues Pinnacle Homes & Investments, LLC, and alleges as follows. But that was as far as he could get before Alton turned the page again.

  “What are we reading?” Terry asked.

  Alton peered through the bifocals he wore only when he had to read something important. “This isn’t good, Terry.”

  Terry glanced at David. “What’d you do now, kid?”

  “They’re apparently not convinced by the fire inspector’s findings.” Alton frowned.

  “Different burdens of proof in civil and criminal cases,” Terry said. “The law enforcement’s findings won’t even be admissible in the civil suit.”

  Shit, David thought. He should have known that.

  “Insurance companies get more protection under Florida law than a virgin in a convent.” Terry winked at David.

  Alton turned the page. “And they claim that Pinnacle concealed material facts during the investigation, such that the policy should be declared void and unenforceable.”

  “Did it?” Terry asked David.

  The anxiety welling in David’s gut felt like a drugged mouse fleeing a drugged cat.

  “They also have a claim in subrogation,” Alton said, as if it were a punch line.

  Terry nodded. “They paid the bank, so now they have the same rights the bank had, including the right to foreclose.”

  “They’re foreclosing on the Towers?” David asked.

  “What’s left of them,” Terry answered.

  That it all made such perfect sense to Terry made David feel even worse.

  Alton slid the complaint across the table. David wanted to grab it, but it fell into Terry’s lap.

  “I want you on this, Jenkins. No offense to you, David,” Alton’s eyes briefly met David’s, “but you’re in way over your head.”

  “It’s my client,” David said.

  “Don’t worry,” Alton said. “It will remain your client. You will live or die by this client. But you’re not going to be fighting this battle.”

  “Not alone, at least,” Terry said. He picked up the complaint and started reading. “Oh, they filed in federal court.”

  Things can’t get worse, David thought.

  Terry looked at David as if to say, Yes, they can get worse. “Have you seen the judge?”

  “Let me guess.”

  Terry nodded. “Judge Cox.” He paused to let the bad news sink in.

  David didn’t flinch. “I won in his courtroom once,” he said, recalling his victory against Ed and Wanda Savage. “I can do it again.”

  Terry let out a long sigh. “Get this case ready for trial. And get an early date.”

  CHAPTER TWENTY

  David handed his briefcase over to a wizened federal marshal with glassy eyes and a stone face that said he was in desperate need of another cup of coffee. This was only the third time David had been to Fort Gaspar’s federal courthouse, a desolate brick building where only two judges heard all civil and criminal cases arising under the laws of the United States—or, as in David’s case, disputes over a lot of money between citizens of different states.

  “Is this your bag?” the marshal asked.

  David nodded.

  The marshal opened the bag and pulled out David’s BlackBerry. “You can’t bring cell phones into this building.”

  Another annoying federal rule. “My pretrial starts in ten minutes,” he said. “I don’t have time to return to the office.”

  “He can put it in my locker.”

  David knew the voice before he turned around and saw Beth speeding through another security lane reserved for courthouse employees and government attorneys.

  “Good morning, Ms. Connor.” The marshal greeted her with a smile.

  She took the BlackBerry from the guard and waited for David. “This way,” she said, and he followed her to a small carousel of lockers. “One of the perks of working for the government.” She popped the locker open, threw in the BlackBerry, and locked the door.

  “Thanks,” he said.

  “I’d say you’re out of your league here. What’s on the docket?”

  “A pretrial. With Judge Cox.”

  “Ouch.” She feigned pain before turning serious. Too serious. “I’ve been wanting to talk to you. Actually, about why I haven’t been talking to you.”

  “I know why. You can’t see me because your office is investigating my client.”

  “Who told you that?”

  “You did.” He paused, enjoying the confused look on her face. “In a dream I had.”

  She tried gauging his sincerity but didn’t get far. “That’s some kind of dream.”

  “It got pretty hot. I had to shower when I was finished.” He grinned.

  “You never could last that long.” She glanced at her watch. “I’m running late.”

  “How do I get my phone?”

  “I have sentencings all morning. I’ll be in courtroom 2-B.”

  He started to leave.

  “By the way,” she said. “You should get one of these lockers before your trial. You might need it.”

  David timed his entrance to Judge Cox’s courtroom perfectly. The room was empty other than a federal marshal and court reporter chatting at the table in front of the judge’s bench. “Are you here for the one o’clock pretrial?” the clerk asked when she saw David.

  He nodded. “I represent the defendant.”

  Just then, the door to the courtroom busted open, heralding the grand arrival of Mr. Victor Vasquez. “And I represent the plaintiff,” he said as he shuffled to the plaintiff’s table.

  “I’ll let the judge know,” the clerk said while typing on her computer.

  David took his seat, trying to study Vasquez without being noticed. Vazquez picked his nose and flicked whatever he’d pulled out. David chuckled to himself as the bailiff knocked on the door and called the court to session. Judge Cox entered from a door behind the bench. David wondered whether the judge would remember him from the Savage trial and, if so, what he would remember.

  The judge glanced at Vasquez first, then slowly turned in David’s direction. His thick glasses made it unclear whether he was really looking at David or not. “Counsel, please announce your appearances.”

  Vasquez was already standing. “Victor Vasquez for the plaintiff, Conti
nental Indemnity Company of America.” His voice echoed through the spacious courtroom.

  “Thank you, Mr. Vasquez. I’m sure you appreciate the opportunity to get out of Miami for at least half a day.” The judge grinned, reminding David that Cox was rumored to hate everything out of Miami.

  Any semblance of a smile faded as Judge Cox turned to David. “Let’s hear from the defendant.”

  David stood, a bit weak kneed. “Good morning, Judge Cox. Good to see you. David Friedman for the defendant.” His voice sounded boyish in comparison to Vasquez’s.

  The judge glared at David for what seemed a minute before letting out a deep sigh. “Mr. Friedman. By your presence here today, can I assume you’ve taken my last admonishment to heart?”

  David wondered for a minute whether the judge was going to ask to see his CLE records. “Of course, Your Honor.”

  David took his seat. Vasquez still looked confused by the exchange.

  “Very well,” the judge said. “I’ve reviewed your pretrial statement.” He looked in Vasquez’s direction. “Mr. Vasquez, is the plaintiff ready to try this case?”

  “Honestly, Judge, we need more time to complete discovery.”

  “Mr. Vasquez, discovery in this case ended a month ago.”

  Vasquez rolled his eyes. “Judge, I’ve worked hundreds of coverage cases like this one. I can assure you discovery—”

  “My order said what it said,” the judge barked. “Mr. Friedman?”

  David wasn’t sure what the judge was asking, but he stood up anyway. “Judge, this fire, and the plaintiff’s refusal to pay my client’s insurance claim put my client out of business. We need—”

  “Actually, the housing bust put him out of business,” Vasquez interjected.

  Judge Cox looked angrily at Vasquez. “Do not interrupt my court, Mr. Vasquez, and do not speak unless you are called upon. That may be how things are done in Miami, but it is not how they are done in this courtroom.”

  Vasquez sat down. David figured he was just testing the judge so he’d know how and when to push his buttons in front of the jury at trial.

  “Do you understand me?” Judge Cox’s eyes were still locked on Vasquez.

  “Yes, absolutely, Your Honor,” Vasquez said, still seated.

  “Please continue, Mr. Friedman.”

  Seeing the beating Vasquez was taking gave David a new sense of confidence. “Thank you, Judge. The insurer conducted a lengthy investigation before it denied my client’s claim. We’ve completed discovery over the past few months. There’s no evidence my client had anything to do with this fire or lied to the insurance company about a single fact. We’re ready to try this case. We’re ready for justice.”

  Judge Cox shook his head. “I have a heavy docket, one of the privileges of being the junior judge here, and it’s going to stay efficient.” He glared at Vasquez. “We’re going to try this case by Christmas. Do you understand?”

  “Yes, Judge.” Vasquez nodded.

  David hid the grin trying to form on his face. Any concern he’d had about not being ready for trial was alleviated knowing that Vasquez was even less prepared.

  “Anything else I need to consider before trial?” Judge Cox asked in a gruff Dirty Harry tone.

  “There is one thing,” Vasquez said. “We didn’t receive a ruling on one of our motions in limine. The one dealing with lack of criminal prosecution.”

  Vasquez had filed more than a dozen motions in limine, or motions to exclude evidence at trial, and David knew just the one he was talking about.

  “Prosecution by the police?” the judge asked, as if to refresh his memory.

  “Exactly, Your Honor. We moved to exclude all evidence that Mr. O’Reilly was not prosecuted by the authorities. Due to the different burdens of proof applicable to a criminal claim of arson and a civil proceeding, the Eleventh Circuit has held, quite clearly I might add, that lack of criminal prosecution is inadmissible in a civil proceeding involving an arson defense to coverage.”

  Judge Cox looked at his computer monitor, probably reading an email from his law clerk on the issue. “I’m familiar with that case law. Did you oppose this motion, Mr. Friedman?”

  “I did,” David said, still on his feet.

  “On what grounds?”

  “They can’t have their cake and eat it too, Judge. They can’t accuse my client of committing this horrible crime and at the same time keep me from telling the jury that the police never arrested a single person in connection with this alleged crime.”

  Judge Cox removed his glasses and looked David up and down. “Said who? The law of the Eleventh Circuit or the law of David Friedman?”

  “It’s common sense, Judge. Just common sense and fairness.”

  Judge Cox shook his head. “Mr. Friedman, I’ll be the first to admit the rulings we got out of Atlanta and Washington don’t always comport with common sense. But I agree with Mr. Vasquez that the law is clear on this issue, and as is often the case, it favors the insurance company. I have no choice but to grant the motion.”

  Vasquez pandered to the judge with a thank you.

  “There will be no mention of criminal prosecution in this case at any time in front of the jury. Are we clear on that?” The judge looked right at David for a response. “As I recall, Mr. Friedman, the last time you tried a case in front of me, you didn’t exactly respect my pretrial rulings.”

  “I will abide by your ruling, Judge.”

  The judge turned to Vasquez. “I’m sorry you didn’t get a ruling sooner. This one slipped through the cracks.”

  “Thank you, Your Honor. That’s why I brought it to your attention.”

  After the judge left, Vasquez blew David a kiss and started packing.

  A few minutes later, Vasquez cornered David by the elevator bank. “Freeman!”

  “It’s Friedman.” David hit the down button.

  “That’s what I said.” Vasquez was catching his breath. “So what, you got pictures of the judge I need to know about?”

  “Sounds to me like he doesn’t like your case.”

  “Sounds to me like some homer favoritism.” Vasquez glanced at his watch, and then shook his head. “Which I could care less about. He’s not going to decide the case. The jury is.”

  “We’re ready to take this to the jury,” David said with all the confidence he could muster, which wasn’t much.

  “By the end of the year? Give me a break.”

  The elevator arrived. David let Vasquez get on first. “We’ve got nothing to hide.”

  “You reek of desperation, Friedman. You must have this on a contingency fee.” Vasquez studied David’s reaction, glaring as though he could read his mind.

  David hit the button for the second floor, and the door closed. “So I want to get my client paid.”

  “Even if you win at trial, we can bleed you to death on appeal,” Vasquez said. “It’ll take years to get paid.”

  “We’ll take our chances,” David said as the elevator stopped at the second floor.

  Vasquez’s face twisted with his trademark sinister grin. “You really willing to take your chances with Xerxes Capital hanging out there?”

  David stepped out of the elevator, trying to play it cool. But there was something chilling about those words: Xerxes Capital.

  “That’s what I thought,” Vasquez said as the elevator door closed shut on him.

  David wanted to kick himself for letting Vasquez see his fear. And he wanted to kick Frank harder for not coming clean about Xerxes Capital, or at least making David believe he’d come clean. He was ready to give Frank an earful, but first he had to get his BlackBerry back from Beth.

  He entered courtroom 2-B and found at least twenty people seated in the gallery. Another five were seated at each of the two tables for counsel. Beth stood at the podium addressing a federal judge David didn’t know.

  Beth’s voice had grown a few hundred decibels since law school. “Yes, Your Honor, under the sentencing guidelines, Mr. Ruiz is
subject to a maximum of twenty years. As part of his plea, we have agreed to the minimum of seven years along with five of probation.”

  As Beth persuaded the judge to cut the defendant a break for cooperating, David studied the unshaven defendant, who looked more like a salesman than a criminal. He was seated by his attorney, probably facing his last day of freedom for several years.

  The judge interrupted. “Honestly, Ms. Connor, I have some misgivings about sentencing a man who has bilked taxpayers out of that kind of money to the minimum sentence, even if he did cooperate with the government’s investigation.”

  Beth nodded as though she’d anticipated that response. “He also cooperated in our investigation and provided information that was vital to our case and several ongoing investigations.”

  “Can you expound on any of that?” the judge asked.

  “Not in open court, Your Honor.”

  The defendant turned and glanced at the audience behind him. David imagined how anyone seated in the gallery could have it out for the guy. He scanned the rows behind the defendant’s table; maybe a few media types and family members. In the rear of the courtroom, a man was standing to leave. He turned for the door, allowing David to get a good look at his face. David’s heart pounded as he realized this was the linebacker with the blue and gray eye who was always harassing Katherine at the sales office.

  David waited a moment before he stood to follow Dick Butkus. Outside, in the hallway, David peered around the corner at the elevator bank and saw the door closing. Then, he hit the button for the next elevator.

  Once he reached the lobby, he scanned every direction but saw no sign of his subject. He darted through security and down the steps of the courthouse. The streets were dead except for a shadow turning a corner on the opposite side. David sprinted in that direction.

  Once he turned the corner, he knew it was Dick Butkus all right when he saw the black Acura parked down the street. The linebacker was opening the car door.