Wednesday, February 16, 2011

Let's listen to a prosecutor intentionally misrepresent the facts of a case to a judge.

We left off on Monday discussing how Miami Dade County Judge Lando was about to reprimand lawyers from foreclosure mill Ben-Ezra & Katz for lying to the court.  Essentially the fine lawyers from Ben-Ezra & Katz had made misleading statements to the court regarding documents from a home they were foreclosing on, at first they said the original documents were lost, but then months after the attorneys stated that they were lost they magically reappeared, the only problem was that the documents they filed actually belonged to another home and had nothing to do with the home that was the subject of their foreclosure action.  We've yet to see how the Judge Lando is going to deal with the attorneys responsible for perpetrating this fraud on the court, but considering the Judge's tone in the article, it's not going to be good.

Regardless though, those guys are foreclosure hacks that are just pushing paperwork through the system, it's understandable at the rate they're going through those foreclosures and the pressure the banks are putting on them to get final judgments, a screw up of this magnitude was inevitable.  But what if the attorney that's perpetrating a fraud on the court isn't a foreclosure hack or a green criminal defense attorney?  What if the attorney that's bullshitting the court is a veteran economic crimes prosecutor with a keen interest in mortgage fraud?  I wonder what the punishment would be for a prosecutor who intentionally misrepresented the facts of a case to the court?  

Before we can speculate on how the court would deal with such a prosecutor, we first need examine the evidence of such behavior.  Let's revisit arrest affidavit for the Bernardo Barrera mortgage fraud case...

Let's break that down...
  • 2/13/08 Purchase of the subject home by Mr. Romney's company.
  • 2/19/08 Sale of property by Mr. Romney to the man who posed as Bernardo Barrera. The state alleges that a HUD-1 closing statement was faxed to the lender indicating that the earnest money was already paid.
  • 2/20/08 Citi mortgage wire transferred loan proceeds to attorneys trust account.
  • 2/21/08 Michael Martinez purchases a cashiers check for $123,530.56 made payable to attorneys trust account.
  • 2/22/08 Proceeds from the closing were disbursed to seller (Romney).
  • 2/27/08 Cashiers check purchased by Martinez is deposited into the attorneys escrow account.
Easy to understand right?  Now, just to be perfectly clear here, through the testimony given to the state attorneys office and the detective who put this case together, we know that the cashiers check that was purchased on 2/21/08 was delivered to the closing agents office the very same day that it was purchased, from Mr. Martinez's depo...

Ok, so just to recap let's go through it again:
  • 2/13/08 Convicted mortgage fraudster John Romney purchases home that at the center of the Barrera mortgage fraud case.
  • 2/19/08 Closing for sale of home by John Romney to Bernardo Barrera.
  • 2/20/08 Citi mortgage wires proceeds of the loan to attorneys trust account.
  • 2/21/08 Micheal Martinez purchases a cashier check made payable to the attorneys trust account and delivers said check to the attorney the same day.
  • 2/22/08 Proceeds of closing disbursed to seller, John Romney.
  • 2/23/08 Cashiers check purchased by Michael Martinez is deposited into attorneys escrow account.
Simple right?  Buyer and seller come to the closing, execute all the documents, no money is disbursed then two days later a cashiers check for the down payment comes in and the proceeds of the transaction are disbursed the next day.  Remember, these are facts that we gleaned from the states own arrest affidavit, an affidavit that we strongly suspect was authored by none other that Assistant State Attorney Bill Kostrzewski.

Now, let's see how Mr. "veteran economic crimes prosecutor" Bill Kostrzewski decided to represent the facts of this very transaction to Judge Mary Barzee when he was  asked to explain the foundation of his case...

Go through it a couple of times, can you pick up the problems with the prosecutors testimony?  Here's a transcript of what went down that day in court in case you couldn't hear the audio...

Judge: what’s Martinez’s role according to the state?

Prosecutor:        Your honor, on February the nineteenth a closing closed at Ms. Estefanos office.  The funds were dispersed that day or the next day.  However, the cash to close, the one hundred twenty three thousand and change,

Judge: Say that again?

Prosecutor:        the cash to closing, the money that the buyer had to put up, you know, not the down payment but the cash to close that he had to put through the bank was approximately one hundred and twenty three thousand dollars, that was never given.  Funds were dispersed without a down payment.  Seven days later Mr. Martinez was approached by Mr. Romney, no, Mr. Fonte, the guy that we just arrested your honor, said “hey look, you wanna make ten grand? We need this money, ”  He goes to the, he goes to the bank with his mother and Mr. Fonte, they get this check, they go and they go to Ms. Estefano, Ms. Estefano’s office and Mr. Fonte introduces him to Ms. Estefano, ah according to the statement, “is it a problem, I’m the remitter on this check, I’m not the buyer.”  She says “that’s not a problem”, takes it and that’s basically it.

Judge: So what would you um, characterize Martinez’s role as somebody who was fronting a portion of the cash?

Prosecutor:        Yes your honor.

Judge: And Fonte was…

Prosecutor:        He was the arranger or the recruiter so to speak.

Notice that the prosecutor makes no mention of a key player in the fraud?  We'll go through it in detail tomorrow.

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